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M'^MTJLLAN'S 


LAW   REPORTS. 


TWO  A^OLITMES  IN  OKE. 


CONTAINING    CASES    DETERMINED   IN   THE   LAW  COURT  OF   APPEALS 

AND   COURT    OF    ERRORS    IN    SOUTH    CAROLINA,    FROM 

NOVEMBER  TERM,  1840,  TO  MAY  TERM,  1S42, 

BOTH  INCLUSIVE. 


BESIDES  SOME  EABLIEB  CASES  IN  TWO  APPENDIXES. 


SECOND    EDITION, 


WITH  NOTES  REFERRI  XG  TO  THE  STATUTES  AT  LARGE  AXD  TO  CASES  IN  THE 


SOUTH  CAROLINA  EEPOHTS. 


CHARLESTON,  S.   C.  : 
McCARTER  &  DAWSON,  116  MEETING  STREET. 

1860.   . 


ADVERTISEMENT. 


This  reprint  is  made  under  a  contract  wliicTi  we  have  entered 
into  witti  public  authorities.  Nothing  that  the  Eeporter  chose  to 
publish  has  been  omitted  ;  but,  by  the  aid  of  a  friend,  who  is  con- 
nected with  the  Courts,  a  hasty  revision  has  been  made.  Many 
errors  have  been  corrected  in  the  opinions  of  the  Judges,  which, 
through  blunders  of  Printer,  Copyist  or  Eeporter,  crept  into  the 
former  edition,  and  often  marred  the  sense.  A  new  table  of  cases 
has  been  prepared ;  but  the  abstracts  of  the  Eeporter  have  been 
necessarily  left  as  they  were,  except  a  few  alterations,  where,  by 
the  omission  of  not^  or  some  such  material  departure  from  what 
was  desired  they  were  likely  to  mislead.  Numerous  false  references 
have  been  set  right.  The  statutes  at  large  have  been  cited  once  in 
every  case,  where  a  statute  was  referred  to.  Where  the  same  case 
is  to  be  found  several  times  reported,  the  former  or  subsequent  re- 
port has  been  noted.  To  most  of  the  cases  have  been  added  notes 
referring  to  other  cases,  sometimes  by  name,  but  most  frequently 
(for  want  of  time  and  for  fear  of  misprint)  only  by  volume  and 
page.  The  cases  thus  referred  to  are  additional  to  those  which 
may  be  found  cited  any  where  in  the  report  of  a  case  to  which  a 
note  is  appended.  They  are  almost  entirely  confined  to  the  South 
Carolina  Eeports,  and  for  the  most  part,  to  the  Eeports  subsequent 
to  McMullan.  In  them  will  usually  be  found  some  overruling, 
modification,  confirmation,  or  explanation  of  the  case  reported — 
but  sometimes  only  a  citation  of  the  case  reported,  or  an  observa- 
tion upon  some  subject  considered  in  it,  or  some  kindred  subject. 

The  notes  of  the  Annotator,  to  distinguish  them  from  the  matter 
in  the  original  Eeports  are  marked  An. 

We  feel  confident  that  a  comparison  of  the  two  editions  will 
show  a  great  improvement  in  this  ;  but,  we  lament  that  the  nature 
of  our  contract,  the  difficulty  of  procuring  a  competent  person  in 
time  to  make  a  complete  revision,  and  the  death  of  Mr.  McMullan^ 
(who  might  have  dealt  more  freely  with  his  own  work,)  leave  room 
for  any  one  to  say,  that  these  Eeports  are  not  all  they  might  have 
been  made. 

McCAETEE  &  DAWSON. 

Charleston,  18  59. 


JUDGES  AND  OTHER  LAW  OFFICERS  DURING  THE  PERIOD 
COMPRISED  IN  THESE  REPORTS. 


Judges  of  the  Courts  of  General  Sessions  and  Common  Pleas,  called  Law  Judges, 
who,  or  a  majority  of  whom,  assembled  in  banco,  constituted  the  Law  Co  art  of 
Appeals  after  December,  1S36. 

Hox.  RICHARD  GANTT,(a)  Hon.  JOSIAH  J.  EVANS, 

"     J.S.RICHARDSON,  "     BAYLIS  J.  EARLE, 

"    JOHN  B.  O'NEILL,  "     ANDREW  P.  BUTLER, 

Hon.  DAVID  DAVIS  WARDLAW.(ii) 


Chancellors  who,  or  a  majority  of  whom,  constituted  the  Equity  Court  of  Appeals 
after  December,  1834. 

Hox.  DAVID  JOHNSON,  Hon.  JOB  JOHNSTON, 

"     WILLIAM  HARPER,  "     BENJAMIN  F.  DUNKIN. 

The  ten  Law  Judges  and  Chancellors,  or  a  majority  of  each  bench  assembled  in 
one  chamber,  constituted  the  Court  of  Errors,  after  December,  1834. 

The  ten,  or  a  majority  of  each  bench,  (not  including  the  Judge  or  Chancellor 
from  whose  judgment  the  appeal  was  taken,)  constituted  from  the  end  of  Decem- 
ber, 1835,  till  the  end  of  December,  ISSti,  a  Court  of  Appeals  for  both  Law  and 
Equity. 

From  1824,  till  December  18th,  1835,  there  was  a  separate  Court  of  Appeals, 
consisting  of  three  Judges,  which  heard  cases  in  both  Law  and  Equity.  This,  at 
its  dissolution  in  1835,  was  composed  of  Judges  D.  Johnson,  Harper,  and  O'Neill, 
above  mentioned. 


Henry  Bailey,  Esq.,  Attorney  General  prosecuted  in  the  Charleston  Circuit. 

(c)  TuoMAS  Jefferson  Withers,  Esq.,  Solicitor,  Northern  Circuit. 

(r)  Thompson  T.  Player,  Esq.,  ^Solicitors,    Middle    Circuit,  afterwards   called 

(r/)  Thomas  N.  Dawkins,  Esq.,   )  Northern. 

James  .Iohn  Caldwell,  Esq.,  South- Western,  afterwards  Middle. 

JosEi'ii  Newton  Whitner,  Esq.,  Western  Circuit. 

Alexander  R.  McIven,  Esq.,  Eastern  Circuit. 

John  D.  Edwards,  Esq.,  Southern  Circuit. 

There  were  at  no  term  more  than  six  Circuits,  but,  at  various  terms  there  were 
different  arrangements  of  the  Districts  into  Circuits,  and  changes  of  the  names  of 
Circuits. 

Tuomas  J.  Gantt,  Esq.,  Clerk  of  the  Court  of  Appeals  at  Charleston. 
Alexander  Ubrbemoxt,  Esq,,  Clerk  of  the  Court  of  Appeals  at  Columbia. 


(o)  Resigned  Decomher,  1841.  (/;)  Elected  December,  1841,  in  room  of  Judge  Gantt. 

(c)  UecliDcd  re^jlection.  (dj  Elected  ia  1836. 


TABLE  OF  CASES  IN  BOTH  VOLUMES, 

CROSS-INDEXED. 


[The  folios  in  this  Index  marked  with  an  asterisk  (*)  refer  to  the  folios  of  the  former  edition; 
those  unaccompanied  by  the  asterisk  to  the  present  issue.  The  volumes  are  designated  by  the  numerals 
(i.,  ii.,)  preceding  the  folios.] 


Adams  v.  Crimager,  i.,  *309 201 

Alexander  v.  Davidson,  ii.,  *49..   380 
Alexander  &  M'Bee.    See  M'Bee. 
Allen,  Ordinary  v,  Bruton  &  Harl- 

lee,  i.,  *249 162 

Allen  V.  Johnson,  ii.,  *495 661 

Allston  V.  M'Dowall,  i.,  *444. ...   293 
Anderson,   Silk  Company  v.,  i., 

*300 195 

Archer  et  al.,  Buckner,  Ordinary 

y.,  i.,  *85 57 

Arthur  &  Geignard,  State  v.,  i., 

*456 303 

Augusta    Insurance    Company, 

Faulkner  v.,  ii.,  *158 450 

Bacot,  Muldrow  Assignee  v.,  ii., 

*359 577 

Baker  &  Co.  v.  Bushuell,  i.,  *&&,    43 
V.        "         i.,  *272,  178 

Bank  v.  Bowie,  i.,  *429 281 

"      V.  Gailliott  &  Lefevre,  i., 

*209 136 

"      V.Levy,  i.,*431. 283 

"      of  Charleston,  State  v.,  ii., 

*439 627 

"      of  S.  C.  V.  Simpson,  ii.,  *52  381 

Banks  u.  Searles,  ii.,  *356 575 

Barnwell  v.  Magrath,  i.,  *174 114 

Barret,  Sherman  &  De  Bruhl  v., 

i.,  n47 96 

Barrett,  Charleston  Bank  v.,  ii., 
*191 471 


Barry,  Simpson  Adm'r  z?.,  ii.,*369  584 

Baxter,  Clarke  v.,  ii.,  *434 624 

Beaty  v.  Hearst,  i.,  *31 20 

Beaubicn,  Stoney  v.,  ii.,  *313 ....   548 

Beck  V.  Martin,  ii.,  *260 515 

Beccher,  Day  v.,  i.,  *92 62 

Belcher,  State  v.,  i.,  *40 25 

Bell  V.  Lakin,  i.,  *364 237 

Benson  v.  McBee  &  Alexander, 

ii.,  *91 406 

Bently,  Reynolds  v.,  i.,  *16 10 

Beutly  V.  Page,  ii.,  *52 381 

Bigger's  Ex  parte,  i.,  *69 45 

Bird  V.  Miller,  i.,  *123 82 

Blackwell,  Seibles  v.,  i.,  *56 36 

Blease,  State  v.,  i.,  *472 316 

Bogan,  Palmer  v.,  ii.,  *122 426 

Boise  &  Stuke,  The  State  v.,  (two 

(cases)  i.,  *182,  *191, . .  .124,  125 
Boies  &  Stuke,  The  State  v.,  ii., 

*2.52 509 

Bonnett,  Felder  v.,  ii.,  *44 376 

Bowers  y.  Newman,  ii.,  *472....  647 

Bowie,  Bank  v.,  i.,  *429 281 

Boyce,  Hyams  u.,  i.,  *95 64 

Branch,  Posey  v.,  ii.,  *338 564 

Braveboy,  Cockfield  v.,  ii.,  *270..  521 
Blister's  Guard,  v.  Wisner,  i.,*135    89 

Brousou  V.  Stroud,  ii.,  *372 585 

Bruton  &  Harllee,  Allen,  Ordin- 
ary, v.,  i.,  *249 162 

Bryant,  Goldthwaite  &  Evans  v., 

i.,  *451 299 


TABLE  OF  CASES  IN  BOTH  VOLUMES. 


Buce  V.  Hennegan,  i.,  *28 18 

Buckner,  Ordinary  v.  Archer,   et 

al,i.,*85 57 

Buckner,  Sheriff,  Treasurers  v.,  ii., 

*323 554 

Bngg  r.  Summer,  i.,  *333 217 

.Burbage,  Moore,  Assignee,  v.,  ii., 

nee , 457 

Burger,  Tax  Collector,  Carter  v., 
i.,  *410 267 

Bums,  Thomasson  v.,  ii.,  *340 565 

Bushnell,  Baker  &  Co.  v.,  i.,  *66.     43 
v.,  i.,  *272  178 

Cain  V.  Spann,  i.,  *258 169 

Caldwell   k  Co.,  Langford  v.,  i., 

*275 180 

Caldwell,  Harris  v.,  ii.,  *133 434 

Caldwell  V.  Porcher,  ii.,  *329 558 

Calhoun   v.   Keynolds,  et  a?.,   i., 

*304 198 

Camden  Orphan  Society  v.  Lock- 
hart,  ii.,  *84 402 

Carmille  v.  Adm'r  of  Carmille,  ii., 

*454 635 

Carlisle,  Ordinary  v.,  i.,*100 67 

Carson  v.  Hill  &  Jones,  i.,  *76.. .     50 
Garten  v.  Burger,  Tax  Collector, 

L,  *410 267 

Cathcart,  Ellison  ».,  i.,  *5 3 

Charleston   Bank  v.  Barrett,  ii,, 

*191 471 

Charleston   Insurance  and  Trust 

Co.,  Neve  v.,  ii.,  *237 500 

Cherry  v.  Fergeson,  ii.,  *15 360 

Choviu,  McKenzie  u.,  i.,  *222...  144 

City  Council  v.  Elford,  i.,  *234. .  152 

"  V.  lleisembrittle.ii., 

*233 498 

Clarke  v.  Baxter,  ii.,  *434 624 

IIall&  Co.  ».,  i.,  *316...  206 
"        Pitman,  c/a^.  17.,  i.,*316.  206 

'•        V.  Pooscr,  ii. ,  *434 624 

"  et  al.  V.  Simpson,  i.,  *28G. . .  187 
Clayton,  Harris,  Adm'r  v.,  i.,  *194  127 
Clownoy,  Trecsurors  v.,  ii.,  *510..  672 
Cobb  u.Preasly,  Sheriff,  ii.,*41G.  612 


Cockfield  V.  Braveboy,  ii.,  *170. .  521 
Colding,  King  &  Co,  v.,  i.,  *133..  88 
Columbia  Insurance  Co.,  Neve  v., 

ii.,  *220 490 

Colvin,  Jones  &  Danforth  v.,  i.,  *14  9 
Commissioner  in   Equity  v.  Mc- 

Whorter,  ii.,*254 510 

Cook  &  Norris,  Simpson  v.,  ii.,  *58  385 

Cooper  V.  Halbert,  ii.,  *419 614 

"        V.  Scott,  ii.,  *150 446 

Coxe  V.  Gent,  L,  *302 197 

Crawford,  Jones  v.,  i.,  *373 243 

Creiger  v.  Smith,  ii.,  *140 439 

"      V.      "      ii.,  *279.. 526 

Crimager,  Adams  v.,  i.,  *309 201 

Crosslin  v.  Reed,  ii.,  *10, 356 

V.      "      ii.,  *346 569 

Crymes  &  Owings  v.  Putnam,  i., 

*9 6 

Culpepper  v.  Wheeler,  ii.,  *66. . .   390 

Dalrymple  v.  Lofton,  ii.,  *1]2. ...  419 
Davidson,  Alexander  v.,  ii,,  *49.  380 
Davis,  et  al.,  McCarley  v.,  i.,  *34    22 

Davis  Pearson  ti.,i.,*37 24 

"      V.  Ruff,  i.,  *1 1 

Dawsey,  Shaw  v.,  i.,  *247 161 

Day  w.  Beecher,  i.,  *92 62 

Dean  v.  Horton,  ii.,  *147 444 

Dehay,  Ferguson  &  Dangerfield 

v.,  ii.,  *228 495 

Deloach  w.  Self,  i.,  *12 8 

Dendy,  Donald,  Adm'r  of  Gray, 

v,,ii,,n23 427 

Derrick,  State  v.,  i„  *338 220 

Descottes   &   O'Driscoll   v.,  Tal- 

vande,  ii.,  *300 539 

Deval  V.  Taylor,  i.,  *460 306 

Devlin  v.  Killcrease,  ii.,  *425 618 

De  Millen  v.  McAlilly,  iL,  *499..  664 
Dial  &  Henderson,  Farrow  v.,  i., 

*292 191 

Dillard  v.  Wallace,  i.,  480 323 

Donald,  Adm'r  of  Gray  v.  Dendy, 

ii.,*123 425 

Dowling,  Hodge  u.,  ii.,  *209 483 

Duraut,  Ordinary  v.,  i.,  *100 67 


TABLE  OF  CASES  IN  BOTH  VOLUMES. 


Eagan  v.  Gantt,  i.,  *468 313 

Easterby  v.  Heilbron,  i.,  *462 ....  307 
Easterling,  Terrell  v.,  ii.,  *24...  365 
Easterlhig's  Sureties,  State  v.,  ii., 

*204 480 

Edwards;  ei  al.,  State  ex  rel.,  Oak- 
ley v.,  i.,  *215 140 

Elford,  City  Council  v.,  i.,  *234. .   152 

Ellison  V.  Cathcart,  i.,  *5 3 

Eutz  V.  Mills  &  Beach,  i.,  *453. .  300 

Evans  v.  Hinds,  i.,  *490 332 

"      Yarnum,  Fuller  &  Co.  v., 

ii.,  *409 608 

Ewart  W.Kerr,  ii.,  *141 440 

r.  Nagel,  i.,  *50 32 

Farrow  v.  Dial  &  Henderson,  i., 
*292 191 

Faulkner  &   Rogers  v.  Augusta 

Insurance  Co.,  ii.,  *158 450 

Felder  v.  Bonnett,  ii.,  *44 376 

V.  Railroad  Co.,  ii.,  *403.  604 

Ferguson,  Cherry  -o.,  ii.,  *l5 360 

"        State  v.,  ii.,  *502 666 

"        &  Dangerfield  v.  Dehay, 

ii.,  *228 495 

Figereux  &  Chanipy,  Olin  v.,  L, 

*203 132 

Flemming,  Fowler  v.,  i.,  *282 184 

Ford's  Ex'ors,  Lesterjette,  Ordi- 
nary v.,  i.,  *86 57 

Fort,  Pope  v.,  ii.,  *60 386 

Foster  u.  Gault,  ii.,  *335 562 

Fowler  y.  Flemming,  i.,  *282 184 

Free,  The  State  v.,  l,  *494 334 

Gaillard  v.  Le  Roy,  i.,  *225 146 

V.  Le  Signeur,  i.,  *225. .  146 
Gaillott   &   Lefevre,  Bank   v.  i., 

*209 136 

Gantt,  Eagan  v.,  l,  *468 313 

Gault,  Foster  «.,  ii.,  335 562 

Gavis  V.  Ross,  Sheriff,  ii.,  275 526 

Gent,  Coxe  r.,  i.,  302 197 

Gill,  Hogg  v.,  i.,  *329 214 

Gist,  et  al.  v.  McJunkin,  et  aL,  i., 

*342 223 


Givens  &  Nathans,  Stecdman  v., 

ii.,*202 478 

Glover,  Assignee,  v.  Hutson,  ii., 

*109 417 

Goldthwaite  &  Evans  v.  Bryant, 

i.,  *451 299 

Gray's  Adm'r  v.  Dendy,  ii.,  *123.  427 
Green's  Ex'ors,   McLean  v.,    ii.,  4 

*17 361 

Grimk§  v.  Houseman,  i.,  *131. . .  86 
Guardian  of  Brister  v.  Wesner, 

i.,  *135 89 

Gunter,  State  v.,  i.,  *458 305 

Halbert,  Cooper  v.,n.,  *419 614 

Hall  &  Co.  V.  Clarke,  i.,  *316. . .  206 

Hamilton  v.  Langley,  i.,  *498...   338 

V.  Mayson,i.,*498...   338 

Harper  v.  Scuddy,  i.,  *264 173 

Harris  v.  Caldwell,  ii.,  *133 434 

Adm'r  v.  Clayton,  i.,  *194  127 
«  "      v.Keckley,ii.,*196  474 

Hatcher  v.  Hatcher,  ii.,  *429 ....  621 
Haviland,    Harrall   &    Allen    v. 

Hill,  ii.,  *55 383 

Hawkins  v.  McBee  &  Alexander, 

ii.,*91 406 

Hearst,  Beaty  w.,  i.,  *31 20 

Heilbron,  Easterly  v.,  l,  *462 ....  307 
Ileisembrittle,  City  Council  v.,  ii., 

*233 498 

Henegan,  Buce  v.,  i.,  *28 18 

Herbemont's  Adm'r  v.  Percival, 

i.,  *59 38 

Herriott  &  Patterson,  The  State 

v.,i.,n2e 67 

Heyward  v.  Searson,  ii.,  *231 ....  496 
Hill  &  Jones,  Carson  v.,  I,  *76..  50 
Hill,  Haviland,  Harrall  &  Allen 

v.,n.,*55 383 

"     Hyatt  &  Co.  v.,  ii.,  *55 . . . .   383 

Hinds,  Evans  v.,  I,  *490 332 

Hodge  V.  Bowling,  ii.,  *209 483 

Hodges,  Owens  t'.,  i.,  *106 71 

Hogg  V.  Gill,  i.,  *329 214 

Horlbeck  v.  Hunt,  i.,  *197 129 

Horton,  Dean  v.,  ii.,  *147 444 


^ 


TABLE  OF   CASES   IN   BOTH    VOLUMES. 


Houseman,  Grimk6  v.,  I,  *131. . .     86 

Hunt,  Horlbeck  v.,  i.,  *197 129 

"      Ordinary  t\,  i.,  *380 247 

Hurtz  V.  Ex'rs  of  Neufville,  ii. 

*138 437 

Hutson,  Glover,  Assignee  v.,  ii., 

*109 ^17 

Hyams  V.  Boyce,  i.,  *95 64 

Hyatt  &  Co.  v.  Hill,  ii.,  *55 383 

Insurance  Co.  Augusta  Faulkner 
&  Rogers  t;.,  ii.,  *158 450 

Insurance  Co.  Charleston,  Neve 
v.,n.,  *237, 500 

Insurance  Co.,  Columbia,  Neve 
v.,u.,  220 490 

Irby  V.  State,  i.,  *485 327 

Jacobs  V.  McBee  &  Alexander, 
ii.,  *348 570 

Jennings,  Moultrie  ?;.,ii.,  *508 ....  670 
"       &Beaty,StatetJ.,i.,*297  194 

Johnson,  Allen  v.,  ii.,  *493 661 

Jones  »fe  Dauforthw.  Colvin,i.,*14      9 

Jones  V.  Crawford,  i.,  *373 243 

"      Littlej(ihn  v.,  ii.,  *365....   581 
"      States.,  i.,  *236 153 

Keckley,    Harris,    Adm'r  v.,  ii., 

n96 474 

Kennedy,  Porter  v.,  i.,  *354 230 

"          V.  Sowden,  i.,  *323 210 

Young  v.,  ii.,  *80 399 

Kennerly  t'.  Walker,  i.,  *117 78 

Kerr,  P^wart  v.,  ii.,  *141 440 

"      StateBankv.,  i.,  *139....  91 

"      Thomasson  w.,  ii. ,  *340 565 

Kershaw  &  Gilman  v.  Starnes,  et 

al.,i.,*r.i 48 

Killcroaso,  Devlin  v.,  ii.,  *425...  618 

King  <fe  Co.  V.  Colding,  i.,  *133. .  88 
King,  Adm'r,  Williamson  v.,  ii., 

*505 6G8 

Knotts,  Wolfe's  Heirs  v.,  ii.,  *73.  396 

La  Croux,  State  ?;.,  i.,  *488 330 

Lakin,  Bull  r.,  i.,  ^;jG4 237 


Lamar  v.  Reed,  ii.,  *10 356 

"      V.      "      ii.,  *346 569 

Lamar  &  Daniel  v.  Reed,  ii.,  *10.  356 

V.     "     ii.,  *346  569 

Langford,  Caldwell  &  Co.  v.,i.,  *275  180 

Laugley,  Hall  &  Co.  v.,  i.,  *498. .  338 

Laurens,  Munro  v.,  1.,  *442 291 

Le  Roy,  Gaillard  v.,  l,  *225....  146 
Le  Signeur,  Gaillard  v.,  i.,  *225..  146 
Leslie  &  Calhoun  y.  Taggart,  She- 
riff, ii.,  *71 393 

Lesterjette,  Ordinary  v.  Ex'rs  of 

Ford,  i.,  *86 57 

Levy,  Bank  y.,  i.,  *431 283 

Lewis,  Myers  «.,  i.,  *54 35 

Littlejohn  v.  Jones,  ii.,  *365 581 

Lockhart,  Camden  Orphan  Socie- 
ty ??.,  ii.,  *84 402 

Lofton,  Dalrymple  v.,  ii.,  *112.. .  419 
Lucas  V.  Sanders  &   McAlilly,  i., 

*311 203 

Lyles  V.  McFie's  Adm'rs,  i.,  *21.  14 

Magrath,  Barnwell  v.,  i.,  *174. . .  114 
Magrath,   Patton's  Adm'r  v.,   i., 

*212 138 

Main,  Seigling  v.,  i.,  *252 164 

Martin,  Beck  v.,  ii.,*260 515 

Mason,  Hamilton  v.,  i.,  *498 338 

Maxey  et  al.,  State  ex  rel.,  Cole- 
man u.,  i.,  *501 341 

McAlilly,  De  Millen  v.,  ii.,  *499. .  664 
McBee  &  Alexander,  Jacobs  v., 

ii.,*348 570 

McBee  &  Alexander,  Benson  v., 

ii.,*91 91 

McBee   &   Alexander,   Hawkins 

v.,u.,  *91 406 

McBee  &  Alexander,  Richardson 

v.,n.,  *91 406 

M'Bee  &  Alexander,  Turner  v., 

ii.,*91 406 

McBee  &  Irvine,  Mitchell  &  Co. 

v.,i.,  *2G7 175 

McCartey,  Ex'r,  v.  Davis,  ei  al,  i., 

*34 22 

McDowall,  AUston  v.,  i.,  *444...  293 


TABLE  OF  CASES  IN  BOTH  VOLUMES. 


McFie's  Adm'r,  Lyles  v.,  i.,  *22..  14 
McJunkin,  et  al.,  v.  Gist,  et  al.,  i., 

*342 223 

McKenzie  v.  Chovin,  i.,  *222 144 

McKain  v.  Miller,  i.,  *313 204 

McLean  v.  Ex'ors  of  Green,  ii., 

*17 361 

McLean,  Taylor  v.,  i.,  *352 229 

McPlierson's   Ex'ors,  Treasurers 

u.,ii.,  *69 392 

McWhorter,  Com'er  in  Equity  v., 

ii.,  *254 510 

Menlove  v.  Oakes,  ii.,  *162 453 

Miller,  Bird  v.,  l,  *123. 82 

Miller,  McKain  v.,  i.,  *313 204 

Mills  &  Beach,  Entz  v.,  i.,  *453..  300 
Mitchell  &  Co.  V.  McBee  &  Irvin, 

i.,  *267 175 

Mobley,  Stark  v.,  i.,  *44 28 

Mood,  Pyron  v.,  ii.,  *281 528 

Moore,  Assignee  v.  Burbage.  ii., 

*168 457 

Mordecai,  Steamer  St.  Matthew 

r.,  i.,  *294 192 

Moultrie  v.  Jennings,  ii.,  *508. . .  670 
Muldrow,  Assignee  v.  Bacot,  ii., 

*359 577 

Munro  v.  Laurens,  i.,  442 291 

Murray  v.  Peay,  i.,  *10 7 

V.  Railroad  Co.,  i.,*385.  251 
Myers  v.  Lewis,  i.,  *54 35 

Nagel,  Ewart  y.,  i.,  *50 32 

Neufville's   Ex'ors,  Hurtz  v.,  ii., 

*138 437 

Neve  V.  Charleston  Insurance  and 

Trust  Co.,  ii.,  *237 500 

Neve  V.  Columbia  Insurance  Co., 

ii.,  *220 490 

Newman,  Bowers  v.,  ii.,  *472 647 

Oakes,  M  enlove  v.,  ii.,  *162 453 

Oakley,  Relator,  Edwards,  et  al. 

v.,\.,  *215 140 

Olin  V.  Figereaux  &  Champy,  i., 

*203 132 

Ordinary  v.  Bruton  and  Harllee, 

Administrators,  i.,  *249 162 


Ordinary  v.  Carlile,  i.,  *100 67 

"        u.  Archer,  e^cfZ.,  i.,  *85.  57 

"        f.  Durant,  i.,  *100 67 

"        y.  Ford's  Ex'rs,  i.,  *86.  57 

W.Hunt,  i.,  *380 247 

V.Swift,  1.,  *380 247 

Oswald,  Treasurers  v.,  ii.,  *145, .  443 

Oswald's  Ex'ors,  Treasurers  v.,  ii., 

*207 482 

Owens  V,  Hodges,  L,  *106 71 

Page,  Bently  v.,  ii.,  *52 381 

Palmer  v.  Bogan,  ii.,  *122 426 

Paris  V.  Waddell,  i.,  *358 233 

Parkerson  v.  Simons  &  Epping, 

ii.,*188 469 

Patton's  Adm'rs  v.  Magrath,  i., 

*212 138 

Pearson  v.  Davis,  i.,  *37 24 

Peay,  Murray  v.,  i.,  *10 7 

"  V.  Robertson,  et  al.,  1.,  *10.  7 
Percival,  Herbemont's  Adm'r  v., 

i.,*59 38 

Pickenback,  Smith  v.,  ii.,  *72.. . .  394 
Pitman  et  al.,  v.  Clarke,  i.,  *316.  206 
Pitts,  Watson,  Trustee  v.,  ii.,  *298  537 

Pooser,  Clarke  v.,  ii.,  *434 624 

Pope  V.  Fort,  ii.,  *60 386 

Porcher,  Caldwell  v.,  ii.,  329 558 

Porter  v.  Kennedy,  i.,  *354 230 

Posey  V.  Branch,  ii.,  *338 564 

Price,  Ex'or,  v.  Price,  i.,*291 ....  190 
Putnam  v.  Cryraes  &  Owings,  i., 

*9 6 

Pyron  v.  Mood,  ii.,  *281 52B 

Ragsdale  v.  Thorn,  i.,  *335 218 

Railroad  Co.,  Felder  v.,  ii.,  *403.  604 

Murray  «.,i.,  385..  251 

Reed,  Crosslin  v.,  ii.,  *10 356 

"           "        v.,  ii.,  *346 569 

"      Lamar  w.,  ii.,  *10 356 

"           "      w.,ii.,*346 569 

"      Lamar  &  Daniel  y.,  ii.,*10.  356 

"      v.,ii.,*346  569 

Reynolds  u.  Beatty,  i.,  *1 6 10 

"        et  al.   V.    Calhoun,    i., 

*304 1P8 


10  TABLE   OF   CASES 

Rbett,  Sams  v.,  ii.,  *1"1 459 

Richardson  v.  McBee  k  Alexan- 
der, ii.,  *9l 406 

Richardson  v.  Richardson,  i.,  *280  183 
Rivers  d  al.,  Sureties  of  Oswald, 

Sheriff,  Treasurers  v.,  ii.,  *207  482 

Roberts,  €i!  a?.,  TrammeU'.,i.,*305  199 

Robertson,  et  al.  v.  Peay,  i.,  *l-0..  7 

Ross,  Sheriff,  Gavis  v.,  ii.,  *275. .  524 

Ruff,  Davis  r.,  i.,  *1 1 

Sams  V.  Rhett,  ii.,  *171 459 

Sanders  &  McAlilly,  Lucas  v.,  i., 

*311 203 

Scott,  Cooper  v.,  ii.,  *150 446 

Scuddy,  Harper  v.,  i.,  *264 173 

Searles,  Banks  v.,  ii.,  *356 575 

Searson,  Heyward  v  ,  ii.,  *231. . .  496 
Secrest,  Sheriff,  r.  Twitty,  i.,  *255  167 

Seibles  v.  Blackwell,  i.,  *56 36 

Seigling  v.  Main,  i.,  *252 164 

Self,  Deloach  v.,  i.,  *12 8 

Shaw  V.  Dawsey,  i.,  *247 161 

Sheriff,  Brown,  rule.  Day  v.  Buck- 

ner,  i.,  *92 62 

Sheriff,  Buckner,   Treasurers   v., 

ii.,*323 554 

Sheriff,  Buckner,   Treasurers  v., 

ii.,*.327 557 

Sheriff,  Ross,  Gavis  v.,  ii.,  *275.. 
"         Secrest  u.Twitty,i.,*255.  167 
"  "        rule,    Pitman  & 

Day  p.  Clarke,  i.,  *316 206 

Sheriff,  Townsend,  State  ex  rel, 

Donaldson  v.,  i.,  *495 336 

Sheriff,  Taggart  and  Sureties, 
State  by  Lesly  <t  Calhoun  v., 

ii-,  *"1 393 

Sheriff,  Wylie  and  Sureties,  State 

r.,  ii.,  *1 351 

Sheriff,  Kasterling's  Sur'ies,  Trea- 
surers ».,  ii.,  *204 480 

Sheriff,  Oswald's,  Sureties,  Trea- 
surers i;.,  ii.,  *207 482 

Sheriff,  Deveau.x,  Ford  ic  Fergu- 
son, Surety,  Treasurers  v., 
ii.,  *C9 392 


IN   BOTH   VOLUMES. 

Sherman  &  De  Bruhl  v.  Barrett, 

i.,*147 96 

Silk  C  ompany  v.  Anderson,  i.,*300  195 
Simons  &  Epping,  Parkerson  v., 

ii.,n88 469 

Simpson,  Bank  of  S.  C.  v.,  ii.,*52  381 

"           Adm'r  v.  Barry,  ii.,  *269  584 

Clarke  w.,i.,  *286 187 

Singleton,  Smith  v.,  ii.,  *184....  467 

Smith  V.  Cook  &  Norris,  ii.,  *58..  385 

"       Creiger  y.,  ii.,  *140 439 

"            "       v.,  ii.,  *279 526 

"      V.  Pickenback,  ii.,  *72 394 

"      ».  Singleton,  ii.,  *184 467 

Sowden,  Kennedy  v.,  i.,  *323. . . .  210 

Spann,  Cain  u.,  i.,  *258 169 

St.  Philip's  Church,  "White  v.,  ii., 

*306 542 

Starnes,  et  al.,  Kershaw  &  Gilman 

u.,  i.,  *73 48 

State  Bank  v.  Kerr,  i.,  *139 91 

"         V.   Stoddard   &    Co., 

i.,  n41 93 

State  V.  Arthur  &   Guiguard,  i., 

*141 93 

State  V.  Bank  of  Charleston,  ii., 

*439 627 

State  V.  Belcher,  i.,  *40 25 

"     V.  Blease.  i.,  *472 31G 

"     V.  Boise  &  Stuke,  i.,  *189.  124 

"     V.           «                 i.,*191.  125 

State  V.  Derrick,  i.,  *338 220 

"     ex  rel.,  Oakley  v.  Edwards, 

etal.,l,*2l5 140 

State  V.  Ferguson,  ii.,  *502 666 

"     u.  Free,  i.,  *494 334 

"     V.  Gunter,  i.,  458 305 

"     V.  Herriott  &  Patterson,  i., 

*126 67 

State  V.  Irly,  i.,  *485 327 

"     V.  Jennings  and  Beaty,  i., 

*297 194 

State  V.  Jones,  i.,  *236 153 

"     u.  La  Creux,  i,,  *488 330 

"     ex  rel.  Coleman  v.  Maxey, 

etal,  i.,  *501 341 

State  v.  Mobley,  i.,  *44 28 


TABLE  OF  CASES  IN  BOTH  VOLUMES. 


11 


State  ex  rel.  Donaldson  v.  Town- 
send,  i.,*495 336 

State  V.  Thurston,  ii.,  *382 591 

"     Turner,  ii.,  *399 631 

"     V.  Yon  Glon,  i.,  *187 123 

"     r.  Waterman,  et  ah,  Sure- 
ties of  Easterling,  Sheriff,  ii., 

*204 480 

State  V.  Wylie,  Sheriff,  ii.,  *1 . . . .  351 
Steamer  St.  Matthew  v.  Morde- 

cai,i.,*294 192 

Stedman  v.   Givens  &  Nathans, 

ii.,*202 478 

Stoddard  &  Co.,  State  Bank  v., 

i.,  *141 93 

Stoney  y.  Beaubien,  ii.,  *313 548 

Stroud,  Bronson  v.,  ii.,  *372 585 

Summer,  Bugg  v.,  i.,  *333 217 

Swift,  Ordinary  v.,  i.,  *380 247 

Taggart,   Sheriff,  Leslie  &  Cal- 
houn y.,  ii.,  *71 393 

Talvande,  Descottes  &  O'DriscoU 

v.,  ii.,  *300 539 

Tax-collector,   Burger,  Carter  v., 

i.,  *410 267 

Taylor,  Devall  v.,  i.,  *460 306 

V.  McLean,  i.,  *352 229 

Terrell  v.  Easterling,  ii.,  *24  ....  365 

Thomas  v.  Yates,  i.,  *179 118 

Thomasson  v.  Burns,  ii.,  *340 ....   565 

Thorn,  Eagsdale  v.,  i.,  *335 218 

Thurston,  State  v.,  ii.,  *382 591 

Tobias  v.  Wood,  i.,  *103 69 

Todd,  Watts  y.,  i.,  *26 17 

Trammel  v.  Eoberts,  et  al. ,  i.,  *305  199 
Treasurers  v.  Buckner,  Sheriff,  ii., 

*323 554 

Treasurers  v.  Buckner,  Sheriff,  ii., 

*327 557 


Treasurers  r.  Clownoy,  ii.,  *510. .  672 
"          V.  Ex'ors  of  McPher- 

son,  ii.,  *69 392 

Treasurer  v.  Oswald,  ii.,  *145. ...  443 
"          Rivers  et  al.,  Sureties 

of  Oswald,  Sheriff,  ii.,  *207. .  482 

Turner  i\  McBee   &  Alexander, 

ii.,  *91 406 

Turner,  State  v.,  ii.,  *399 601 

"         V.  Wallace,  i.,  *486 328 

Twitty,  Secrest,  Sheriff,  v.,\.,  *255  167 

Yarnum,  Fuller  &  Co.  v.  Evans, 

ii.,*409 608 

Yon  Glon,  State  v.,  i.,  n87 123 


Waddell,  Paris  ».,  i.,  *358 

Walker,  Kennerlyu.,  i.,  *117.... 

Wallace,  Dillard  v.,  i.,  *480 

Turner  y.,  i.,  *486 

Waterman,  et  al.,  Sureties  of  Eas- 
terling, Sheriff,  State  v.,  ii., 
*^04 

Watson,  Trustee,  v.  Pitts,ii.,  *298 
"        Young  y.,  i.,  *449 

Watts  v.  Todd,  i.,  *26 

Wesner,  Guardian  of  Brister  i-., 
i.,  *135 

Wheeler,  Culpepper  v.,  ii.,  *66. .. 

White  V.  St.  Philip's  Church,  ii., 
*306 

Williamson  v.  King,  Adm'r,  ii., 
*505 

Wolfe's  Heirs  v.  Knotts,  ii.,  *73. 

Wood,  Tobias  v.,  i.,  *103 

Wylie,  Sheriff,  State  v.,  ii.,  *!.... 


233 

78 
323 

328 


480 

537 

297 

17 

89 
390 

542 

668 

396 

69 

351 


Yates,  Thomas  ».,  i.,  *179 118 

Young  V.  Kennedy,  ii.,  *80 .S99 

V.  Watson,  i.,  *449 297 


REPORTS  OF  CASES  AT  LAW, 


ARGUED  AJTD  DETERMINED 


COURT    OF    APPEALS 


SOUTH  CAROLINA, 

FROM  NOVEMBER,  1840,  TO  MAY,  1841,  BOTH  INCLUSIVE. 

TO  WHICH  ARE  ADDED  SOME    CASES  OMITTED  BY  FOEMER  REPORTERS 
FROM  1835  TO  1840. 

BY   J.   J.   M'MULLAN, 

STATE    EEPOBTER. 


VOLUME  I.     SECOND  EDITION. 


CHARLESTOX,  S.  C. 
M'CARTER  &  DAWSON",  116  MEETING  STREET. 

1860. 


PREFACE  TO  THE  FIRST  EDITION. 

The  Eeporter  feels  that  it  is  due,  to  himself  and  the  public,  to 
state  that  this  volume  of  Law  Eeports  would  have  made  its 
appearance  much  sooner,  but  from  the  fact,  that  he  has  been 
laboring  under  a  serious  indisposition,  almost  entirely  since  the 
last  May  Term  of  the  Appeal  Court;  another  reason  has  been  the 
preparation  of  the  omitted  cases,  and  the  delay  consequent  upon 
their  publication.  These  were  circumstances  over  which  he  had 
no  control,  and  he  trusts  that  they  will  have  their  proper  weight, 
with  those  immediately  interested  in  the  appearance  of  the  work. 

Any  apparent  inaccuracies  which  may  be  found  in  this  volume, 
he  confidently  trusts,  will,  from  that  generous  spirit  which  has 
always  characterized  the  bench  and  bar  of  South  Carolina,  be 
overlooked,  and  attributed  to  his  indisposition  and  inexperience, 
rather  than  to  any  want  of  inclination  or  real  negligence  in  the 
discharge  of  his  duty. 

J.  J.  McMULLAN. 

Lancaster,  C.  H.,  \Oth  November,  1841. 


CASES  AT   LAW 

ARGUED  AND  DETEBMINED  IN  THE 

COURT  OF  APPEALS  OF  SOUTH  CAROLINA. 

Columbia,  Jail  Cmn,  1840. 


JUDGES  PRESENT. 

HON.  RICHARD   GANTT,  HON.  BAYLIS   J.  EARLE, 

"      JOHN   S.  RICHARDSON,  "      JOSIAH   J.  EVANS, 

"      JOHN   BELTON   O'NEALL,  "      ANDREW  PICKENS   BUTLER. 


Davis  vs.  Ruff. 


Defendant  was  arrested  and  in  the  custody  of  the  Sheriif  by  virtue  of  a  ca.  sa.,  at 
the  suit  of  the  plaintiif,  and  had  rendered  in  his  schedule  according  to  law,  but 
refused  to  assign  it.  Held,  That  by  his  refusal  to  assign  liis  schedule,  he  has 
not  forfeited  his  right  to  remain  within  the  prison  bounds. 

Before  Earle,  J.,  at  Fairfield,  Fall  Term,  1840. 

The  defendant  had  been  arrested  on  a  capias  ad  satisfaciendum,  at 
the  suit  of  the  plaintiff,  and  had  given  bond  for  the  bounds.  He  rendered 
in  a  schednle  within  the  forty  days,  and  after  the  expiration  of  the  ten 
days,  in  pursuance  of  the  Clerk's  notice,  the  plaintiff  claimed  an  assign- 
ment and  delivery*  of  the  effects  rendered  in,  which  the  defendant  .-^n 
refused  to  make,  and  still  enjoys  the  benefit  of  the  bounds.  The  L 
plaintiCf  obtained  a  rule  against  the  defendant  and  the  Sheriff;  on  the 
return  of  which,  I  was  of  opinion  that  the  remedy  of  the  plaintiff  was 
ample  as  well  as  obvious,  without  resorting  to  the  order  of  the  Court.  I 
was  satisfied  that  the  defendant,  by  refusing  the  assignment,  forfeited  his 
right  to  the  bounds,  but  that  the  Commissioners  should  have  remanded 
him,  or  that  the  plaintiff  might  now  proceed  to  retake  him  by  another 
cainas :  that  the  application  to  the  Court  to  interfere  in  the  present 
state  of  the  case  was  premature  and  irregular. 

The  order  submitted.     Upon  hearing  the  returns  of  the  defendant  and  D.  J. 
Wylie,  Esq.,  late  Sheriff  of  Fairfield,  to  the  rules  in  this  case,  it  is 
YoL.  I.— 2 


2  COLUMBIA,    DECEMBER,    1840.      VOL.  I.  [*2 

Ordered  that  the  Sheriff  of  Fairfield  do  take  the  defendant,  David  H.  Eufif, 
and  keen  him  within  the  walls  of  the  jail  until  he  shall  make  the  said  assign- 
ment ordered  by  the  Commissioner  of  Special  Bail,  or  pay  the  debt  and  costs 
in  said  case. 

The  refusal  to  grant  iJie  order.  The  within  motion  was  made  at  Winnsboro', 
and  was  refused. 

The  mniion  of  appeal.  The  plaintiff  trives  notice  that  he  will  move  the  Court 
of  Appeals  to  reverse  the  decision  of  his  Honor,  the  presiding  Judge,  refusing 
to  irrant  an  order,  requiring  the  sheriff"  to  take  the  defendant,  and  keep  him 
within  the  walls  of  the  jail  until  he  shall  make  the  said  assignment,  ordered  by 
the  Commissioner  of  Special  Bail,  or  pay  the  debt  and  costs  in  the  above  case  ; 
because,  by  the  law  and  practice  of  the  "Court,  such  an.  order  should  have  been 
made. 

Curia,  per  Evans,  J.  The  question  which  has  been  argued,  and  that 
which  I  propose  to  discuss  and  decide,  is,  whether  the  defendant.  Ruff, 
has  forfeited  his  right  to  remain  within  tlie  prison  bounds,  by  his  refusal 
to  assign  his  schedule.  Before  the  Act  of  1788,(a)  commonly  called  the 
Prison  Bounds' Act  a  defendant  arrested  on  a  ca.  sa.  was  confined  within 
the  walls  of  the  jail,  and  could  be  relieved  from  imprisonment  only  by 
paying  the  debt,  or  a  discharge  under  the  Act  of  1759.(6)     *The 


*3l   - 

-^  great  object  of  the  Act  of  1788,  seems  to  have  been,  to  alleviate  the 

harshness  and  severity  of  the  common  law  imprisonment,  by  providing  an 
expeditious  mode  of  discharge,  on  a  surrender  of  his  property,  and  also 
to  enlarge  the  limits  within  which  he  was  to  be  confined,  upon  his  giving 
to  the  Slieriff  satisfactory  security  to  remain  within  the  prison  limits.  The 
defendant  contends  that  those  two  provisions  are  independent  of  each 
other.  He  may  apply  for  his  discharge  without  having  availed  himself 
of  the  prison  bounds,  and  he  may  enjoy  the  privileges  of  the  bounds 
without  assigning  his  schedule. 

By  tiie  2d  section  of  the  Act,  a  prisoner  confined  on  mesne  process 
may  Ik;  admitted  to  the  bounds,  upon  his  giving  to  the  Sheriff  satisfactory 
security  not  to  go  or  be  without  the  prison  rules ;  and  by  3d  section, 
prisoners  in  execution  may  be  admitted  to  the  same  privileges  on  the 
same  terms,  with  the  addition  that  they  will,  within  forty  days,  render  to 
the  Clerk  of  the  Court  a  schedule,  on  oath,  of  their  whole  estate,  or  so 
much  as  will  pay  and  satisfy  the  sums  due  on  the  executions  on  which 
they  arc  confined.  By  the  4th  section,  the  Clerk  of  the  Court,  within  ten 
days  after  the  receipt  of  the  schedule,  is  required  "to  give  public  notice 
that  the  prisoner  will  be  liberated  and  the  property  assigned,  unless  satis- 
factory  cause  to  the  contrary  be  shown  l)efore  one  or  more  of  the  Judges 
of  the  Court  where  the  process  originated,  or  one  or  more  of  the  Com- 
missioners of  Special  Bail  in  the  circuit  districts."  And  if  no  satisfactory 
muse  l)e  shown,  tlie  .Judge,  or  Justice,  or  Commissioner  of  Special  Bail, 
before  wiiom  tiie  prisoner  may  be  brought,  shall  order  an  assignment  of 
tlio  j)risoner's  estate,  and  the  prisoner  shall  thereupon  be  discharged.  In 
this  case,  no  application  for  a  discharge  has  ever  been  made  by  Ruff,  nor 
1ms  any  order  been  made  that  he  should  assign  his  schedule.  If  such  an 
order  had  been  made  by  competent  authority,  and  the  defendant  had 
refused  compliance,  he  might  have  been  ordered  into  close  confinement 
for  bis  disobedience.  This  clause  does  not  take  away  his  right  to  the 
(a)  5  Stat.  78.     An.  (;,)  4  gt^t.  86.     An. 


'3] 


DAYIS  VS.  RUFF.      ELLISON  VS.  CATHCART. 


bounds,  but  merely  makes  the  assignment  of  his  schedule  a  condition 
precedent  to  his  discharge.  By  the  7th  section,  if  a  prisoner  committed 
on  execution  shall  not  give  in  a  schedule  agreeably  to  the  tenor  of  his 
bond,  he  shall  no  longer  be  entitled  to  the  benefit  of  the  prison  rules,  but 
his  bond  shall  be  forfeited  *and  assigned  to  the  plaintiff.  But  this  r-^. 
section  can  only  apply,  I  apprehend,  to  those  cases  where  he  has  L 
rendered  no  schedule,  or  where  the  schedule,  on  a  trial  before  a  competent 
tribunal,  has  been  found  to  be  false.  By  the  11th  section,  in  cases 
of  escape,  the  plaintitF  may  proceed  by  recaption  of  the  defendant ;  I 
suppose,  by  issuing  new  process  against  him.  These  are  all  the  pro- 
visions of  the  Act  which  can  have  any  application  to  the  defendant's  case. 
It  is  not  pretended  he  is  guilty  of  an  escape,  and,  therefore,  the  11th 
section  does  not  embrace  his  case.  He  has  never  applied  for  a  dis- 
charge, and  no  order  has  been  made  that  he  should  assign  his  schedule, 
and,  therefore,  no  process  can  issue  for  a  contempt.  No  suggestion  that 
his  schedule  is  false  has  ever  been  tiled,  and  no  proceedings  have  l:)een 
had  to  establish  the  fact.  The  case,  then,  stands  thus :  The  defendant, 
Ruff,  agreeably  to  the  tenor  of  his  bond,  has  filed  a  schedule  of  his  estate, 
the  truth  of  which  the  plaintiff  has  not  controverted  :  he  chooses  to 
remain  within  the  bounds,  and  declines  to  apply  for  a  discharge,  or  to 
assign  his  schedule.  Is  there  anything  in  this  which  deprives  him  of  the 
benefit  of  the  bounds?  Upon  a  careful  review  of  all  the  provisions  of  the 
Act,  I  am  constrained,  contrary  to  my  first  impressions,  to  come  to  the  con- 
clusion that  the  defendant  has  done  nothing  to  forfeit  his  right  to  remain 
within  the  bounds;  and  such,  it  seems,  has  been  the  practical  construction 
of  the  Act;  for  some  of  my  brethren  remember  more  than  one  case  where 
debtors  have  lived  for  years  within  the  prison  rules,  without  applying  for 
a  discharge  or  assigning  their  schedule.  It  may  seem  strange  that  the 
law  should  require  the  prisoner  to  render  a  schedule,  and  the  Clerk  to 
give  notice  to  the  creditor,  unless  it  was  intended  he  should  assign  his 
effects  for  the  payment  of  the  debt.  But  I  am  not  at  liberty  to  supply 
the  omission  of  what  I  may  conjecture  was  iutended.  I  cannot  look 
beyond  the  Act  for  its  construction. 

The  motion  is,  therefore,  refused  :  the  whole  court  concurring. 

Gregg  for  the  motion.    Clarke,  contra. 

See  Act  of  1841.     11  Stat.  153.     An.  4Ricli.  13,  296.     An. 


*Mary  Ellison  vs.  Robert  Cathcart.  [*5 

Possession  and  the  payment  of  the  purchase  money  is  a  good  equitable  title,  and 
a  possession  of  ten  years  under  such  a  title  is  good  under  the  Statute  of  Limi- 
tations. 

Before  Earle,  J.,  at  Fairfield,  Fall  Term,  1840. 

Trespass  to  try  title. 

It  was  admitted  that  the  title  to  the  locus  in  quo,  was  originally  in 
"William   Ellison,  from   whom   plaintiff  derived   title.      The   defendant 


4  COLUMBIA,    DECEMBER,    1840.      VOL.  I.  [    0 

claimed  to  derive  title  also  from  William  Ellison,  under  a  parol  agreement 
to  pell,  between  him  and  James  Barkley,  with  ten  years'  possession.  The 
evidence  on  that  point  was  as  follows  ;  Samnel  Barkley  deposed,  that 
in  Fel)ruary  or  March,  1830,  he  heard  William  Ellison  say,  that  he  had, 
several  years  before,  sold  to  James  Barkley  a  small  piece  of  land  (which, 
on  examining  the  plat,  he  recognized  to  be  the  same  now  in  dispute,  seven 
and  three-quarter  acres,)  but  they  had  entered  into  no  writings  ;  that  there 
was  a  settlement  pending,  or  to  be  had,  between  them  ;  that  Barkley 
owed  him  for  the  land,  and  also  for  some  fodder,  and  he  owed  Barkley  a 
store  account,  and  he  did  not  suppose  there  was  much  difference.  But  he 
intended  to  have  a  settlement  with  him,  and  draw  writings.  There  was 
no  evidence  of  any  subsisting  agreement  that  the  price  of  the  land  should 
be  set  off  against  the  account,  and  no  evidence  of  any  subsequent  settle- 
ment where  their  mutual  demands  were  balanced  and  extinguished.  jS'o 
written  agreement  was  entered  into,  and  no  conveyance  executed. 

As  early  as  1822  or  1823,  Barkley,  who  owned  an  adjoining  planta- 
tion, had  run  his  fence  rather  within  the  line,  on  Ellison's  side,  for  some 
distance,  through  woods,  and  at  the  corner  had  enclosed  about  half  an 
acre,  which  had  been  continually  cultivated  from  that  time  forward  to  the 
commencement  of  the  suit ;  but  no  further  possession  was  proved  until 
within  four  years,  when  the  whole  was  cut  down  and  enclosed.  There 
was  no  proof  that  any  actual  possession  was  taken  or  held  under  the 
parol  agreement,  the  date  of  which  was  left  entirely  uncertain,  beyond 
that  already  described,  which,  it  was  clear  from  the  evidence,  must  have 
existed  before,  and  was  originally  accidental.  This,  however,  cannot  be 
5j,p-,   an  important  feature  in  the  case,  as  it  turned  on  another  '''point.     I 

-I  instructed  the  jury,  that  under  a  parol  agreement  for  the  purchase  of 
land,  such  as  was  ))roved  in  this  case,  the  possession  of  the  purchaser, 
when  he  enters  under  it,  is  only  a  tenancy  at  will,  until  the  payment  of 
the  jHirchase-money,  and  does  not  become  adverse  until  that  event ;  and 
that  if  they  were  satisfied  on  the  proof,  that  the  purchase-money  was  not 
paid,  or  tliat  there  had  never,  after  1830,  been  any  settlement  between 
p]llison  and  Barkley,  by  wliich  their  mutual  demands  were  balanced  and 
extinguished,  then  the  possession  of  Barkley  had  not  become  adverse,  and 
wouhl  not  enable  him  to  hold,  although  it  may  have  continued  ten  years. 
I  informed  them  that  an  actual  possession  of  twenty  years,  under  such  an 
agreement,  would  authorize  a  presumption  of  payment  and  a  conveyance, 
Init  tliere  seemed  no  proof  here  on  which  such  a  presumption  could  be 
raised.  The  jury  found  a  verdict  for  the  plaintiff.  The  grounds  of 
appeal  seem  to  require  no  particular  remark. 

Defendant  appeals,  and  moves  for  a  new  trial,  on  the  following 
grounds  : 

1.  I3ccausc  the  Circuit  Court  erred  in  charging  the  inry  that  the  possession 
of  (lefcmlunt's  los.sor,  un.ler  a  parol  sale,  could  not  avail  him  without  proof  of 
the  artiial  payiiiont  of  tlio  consitloration  in  money;  and  that  until  the  same 
was  i)ai(l,  h.;  was  only  a  tenant  at  the  will  of  the  vendor,  and  the  Statute  of 
Liinitalions  wouhl  not  run  in  favor  of  his  possession. 

2.  I^'f-aus.'.  it  the  al)ov(!  rule  be  correct,  (that  the  Statute  of  Limitations  will 
not  coninii-nce  to  run  m  favor  of  a  possession  under  a  parol  sale  of  lands  until 
the  paymoMt  of  the  considcratitm  money,)  there  was  ample  proof  in  this  case 
that  I  111'  consideration  for  tlie  land  was  paid  before  or  at  the  time  of  the  sale. 


*6]  ELLISON  VS.  CATHCART.  5 

3.  Because  the  Circuit  Court  charged  the  jury  that  inasmuch  as  the  lessor 
of  the  defentlant  was  iu  possession  of  the  hind  before  his  purchase,  his  after 
possession  could  not  be  considered  in  pursuance  of  his  purchase,  and  therefore 
the  Statute  of  Limitations  could  not  avail  hira. 

4.  Because  there  was  no  proof  that  the  lessor  of  the  defendant  was  in  posses- 
sion of  the  land  before  his  purchase  ;  and,*  therefore,  if  the  rule  laid  down  r^- 
by  the  Court  be  correct  in  this  respect,  it  was  not  supported  by  the  facts  ^  ' 
of  the  case. 

5.  Because  the  Court  charged  the  jury  that  it  was  in  the  power  of  the  lessor 
of  the  defendant  to  put  an  end  to  the  contract  at  any  time  before  the  payment 
of  the  consideration  money ;  and  therefore  the  Statute  of  Limitations  would 
not  commence  to  run  until  the  same  was  paid. 

6.  Because  the  Court  charged  the  jury  that  the  possession  of  the  defendant's 
lessor  was  merely  accidental,  although  there  was  satisfactory  and  clear  evidence 
that  there  were  marked  lines  designating  the  extent  of  defendant's  claim. 

7.  Because  the  Court  charged  the  jury,  that  even  admitting  the  defendant's 
lessor  had  been  in  actual  possession  of  the  whole  of  the  land  in  dispute  from 
the  time  proved,  the  Statute  of  Limitations  would  not  commence  to  run  in  his 
favor  until  the  consideration  money  for  the  land  was  paid. 

8.  Because  the  verdict  is  contrary  to  law  and  equity,  and  against  the  evi- 
dence of  the  case. 

Curia,  j)er  Evans,  J.  The  general  rule  is,  that  he  who  enters  by  the 
permission  of  the  owner  of  the  land,  cannot  acquire  a  title  under  the 
Statute  of  Limitations  so  loug  as  the  relation  between  the  parties 
remains  unchanged.  It  is  not  disputed  that  he  who  enters  under  a  con- 
tract to  purchase,  where  it  is  understood  that  the  seller  is  not  bound  to 
make  the  title  until  the  purchase  money  is  paid,  is  but  a  tenant  at  will  until 
he  performs  the  condition  ;  but  whenever  he  has  paid  the  price,  the 
relation  between  them  is  changed,  and  from  thence  forward,  at  least,  the 
tenant  holds  in  his  own  right.  So  also,  if  the  purchase  money  be  paid 
at  or  before  the  commencement  of  the  possession,  there  would  be  no 
pretence  to  regard  the  tenant  as  not  holding  in  his  own  right.  It  appears 
from  the  evidence  that  Ellison,  the  vendor,  said,  in  1830,  that  several 
years  before  that  time  he  had  sold  the  land,  by  parol,  to  Barkley ;  that 
Barkley  owed  him  for  the  land  and  some  fodder,  and  he  owed  BarkJey  a 
store  account,  and  he  did  not  suppose  there  was  much  difference  between 
them,  but  he  intended  to  have  a  settlement  with  him,  and  to  draw  writings. 
On  reference  to  Barkley 's  books,  it  appeared  that  as  far  back  as  1819,  a 
store  account  of  Ellison's  stood  open  to  an  amount  greater  than  the  price 
of  the  land.  No  other  construction  can  *well  be  placed  on  these  |-^^ 
declarations,  but  that  the  account,  which  was  probably  due  at  the  ^ 
time  the  land  was  sold,  was  to  be  accepted  as  a  payment  on  account  of 
the  land  ;  and  if  the  money  be  paid,  it  must  be  wholly  immaterial  how 
the  fact  is  established.  Possession  and  the  payment  of  the  purchase 
money,  is  a  good  equitable  title  ;  and  a  possession  of  ten  years,  under 
such  a  title,  is  good  under  the  Statute  of  Limitations,  (a)  The  Circuit 
Judge  seemed  to  have  entertained  the  opinion  that  until  there  had  been 
a  settlement  between  the  parties,  by  which  their  mutual  accounts  had  been 
balanced  and  extinguished,  the  statute  would  not  commence  to  run.  In 
the  view  which  I  take  of  the  case,  a  settlement  of  their  mutual  accounts 
was  wholly  immaterial.     If  the  debt  was  paid,  it  was  sufficient,  provided 

(a)  See  i?anZ- vs.  *S??;yers,  2  Strob.  28.  Kimbrellys.  Walker,  TRich.  429.  Suiriner 
vs.  Murphi/,  2  HiU,  4SS.     An. 


6  COLUMBIA,    DECEMBER,    1840.      VOL.  I.  [*8 

satisfactory  evidence  of  the  fact  was  produced.  Some  of  the  authorities 
ffo  so  far  as  to  sav,  that  whenever  the  debt  is  extinguished,  even  if  it  be 
by  the  Statute  of  Limitations,  the  possession  becomes  adverse  ;  and  of 
this  there  can  be  no  doubt,  where  the  payment  of  the  purchase  money  is 
not  a  condition  precedent.  In  the  particular  above  stated,  I  think  there 
was  error  in  the  charge  of  the  Circuit  Judge,  and  the  motion  is  therefore 
granted. 

Gantt,  Richardson,  O'Neall,  Butler,  JJ.,  concurred. 

Clarke  and  McDowell,  for  the  motion.      Woodward,  contra. 


*9]        *A.  Putnam  (holder)  vs.  E.  Crymes  and  E,.  K.  Owings. 

Holder  is  a  word  of  the  name  import  as  bearer :  by  either  of  these  words,  or  other 
equivalent  ones,  a  promissory  note  may  be  made  negotiable  by  dehvery. 

Before  Butler,  J.,  at  Laurens,  Fall  Term,  1840. 

Judges.''  Report. 

The  plaintiff  in  this  case  was  not  the  original  payee,  but  held  the  note 
by  transfer  to  himself  by  delivery.  The  note  was  made  payable  to  Mancil 
Owens  or  holder;  the  plaintiff  declared  as  holder,  and  defendants 
demurred  on  the  ground  that  the  holder  could  not  sue  without  a  written 
assignment.  I  regarded  holder  as  synonymous  with  hearer  and  over- 
ruled the  demurrer. 

Appeal  by  Defendants  on  the  ground  that  the  demurrer  should  have 

been  sustained. 

Curia,  per  Butler  J.  The  word  bearer  is  usually  inserted  in  a  nego- 
tiable note,  transferable  by  delivery.  But  without  it,  the  maker  of  a  note 
may  make  it  transferable  by  delivery,  either  by  circumlocution,  or  using 
a  word  of  precisely  the  same  import.  As  if  a  note  were  made  payable 
to  A.  ]}.  or  to  any  one  to  whom  he  may  deliver  it;  or  to  any  one  who 
might  hold  the  same  by  delivery.  In  both  cases  the  bearer  would  be 
siillii-iently  meant  and  designated,  although  the  word  was  not  used.  If 
it  was  the  intention  of  the  maker  to  make  it  payable  to  any  one  who 
ac(|nires  possession  by  delivery,  he  has  no  right  to  complain  when  it  is 
])reM'nte(l  to  him  without  a  written  transfer.  Holder  is  a  word  of  the 
same  import  as  l)earer,  and  both  may  acquire  a  title  by  lawful  delivery, 
according  to  the  terms  of  the  contract.  All  the  law  requires  is,  that  the 
jtapor  must  have  negotiable  words  on  its  face,  showing  it  to  be  the  inten- 
tion to  give  it  a  transferable  quality  by  delivery ;  otherwise  the  instrument 
*101  "'"**^  ''^  transferred  by  ^written  endorsement,  if  payable  to  order; 
or  sued  on  by  the  original  payee,  if  there  arc  no  negotiable  words 
at  all. 

The  decision  below  is  afTirracd  :  the  whole  court  concurring. 

Sullirun  aL«d  Campbell,  for  the  motion.     Irby  and  Wright,  contra. 


10]  MURRAY  VS.  PEAT. 


John  D.  Murray  vs.  G.  S.  Peay — The   same  vs.  the   same — John 
Robertson,  et  al.,  vs.  George  S.  Peay. 

A  defendant  arrested  under  a  ca.  sa.,  who  gives  the  usual  bond,  for  the  hounds, 
and  without  rendering  in  a  schedule,  or  satisfying  the  debt,  breaks  the  bounds, 
may,  by  the  Act  of  Assembly  of  1839,  be  re-taken ;  or  the  plaintiff  may  proceed 
against  the  security  on  the  boiid:  and  if  the  security  is  insufficient,  he  may 
have  his  action  against  the  Sheriff,  who  shall  be  ultimately  liable. 

It  is  not  necessary  to  have  the  order  of  a  Court,  in  addition  to  the  ordinary  process 
of  law,  which  the  plaintiff  has  a  right  to  have  issued  for  the  purpose  of  caption ; 
but,  if  the  Sheriff  should  refuse  to  obey  the  usual  process,  the  Court  will,  upon 
a  rule,  enforce  it. 

Before  Earle,  J.,  at  Fairfield,  Fall  Term,  1840. 

His  Honor  made  tlie  following  report : 

The  defendant,  Peay,  having  been  arrested  on  the  writs  of  capias  ad 
satisfaciendum,  in  the  several  cases  above  stated,  gave  the  usual  bonds 
for  the  bounds,  and  afterwards,  without  rendering  a  schedule,  or  satisfy- 
ing the  sums  for  which  he  was  confined,  went  without  the  bounds. 

On  the  return  of  a  rule,  which  was  served  upon  him,  to  show  cause, 
the  counsel  for  the  plaintift'  moved  for  an  order  of  the  Court  to  direct  the 
Sheriff  to  re-take  the  defendant,  and  to  confine  him  within  the  walls  of 
the  jail. 

Conceiving  that  the  course  proper  to  be  pursued  by  the  *plaintiff,  r-^. , 
is  plainly  pointed  out  by  Act,  and  that  the  interposition   of  the  ^ 
Court  was  unnecessary,  I  refused  to  grant  the  order,  from  which  decision 
the  parties  appeal,  and  renew  their  motion  in  the  Court  of  Appeals,  upon 
the  following  ground : 

Because,  from  the  facts  set  out  in  the  suggestions,  and  admitted  by  the 
defendant,  he  had  forfeited  his  right  to  the  prison  bounds,  and  incurred  the 
penalty  prescribed  by  the  order;  and  the  proceedings  were  proper  to  ascertain 
and  establish  it  in  judicial  form,  and  the  order  legal  and  necessary  to  impose 
the  penalty  upon  the  defendant. 

Mr.  Smart,  for  the  motion,  cited  the  third  and  seventh  sections  of  the  Prison 
Bounds'  Act,  {a) ;  and  contended  that  from  these  sections,  the  plaintiffs  were 
entitled  to  confine  the  defendant  in  jail,  and  sue  on  the  bond.  He  cited  3d 
M'Cord's  Rep.  429. 

He  contended  also,  that  until  the  schedule  be  filed,  the  Commissioner  of 
Special  Bail  could  not  hear  the  case,  and  cited  the  11th  section  of  the  Prison 
Bounds'  Act,  and  1  Hill's  Rep.  432. 

Mr.  M'  Call,  contra,  cited  Tidd.  960. 

If  a  party  escape,  or  be  rescued,  he  may  be  sued  with  a  second  execution. 

Curia,  per  Earle  J.  The  Act  of  1839,(6)  re-enacting  the  provisions 
of  the  Prison  Bounds'  Act  of  1788,  in  the  same  words,  declares  that, 
"upon  an  escape,  the  plaintiff  may  either  proceed  against  the  defendant, 
to  re-take  him,  or  against  his  security :  or  in  case  the  security  should 
prove  deficient,  against  the  Slieriff,  who  shall  be  ultimatety  answerable  in 
damages  for  such  escape."  The  application  of  the  plaintiff  is  to  direct 
the  Sheriff  to  re-take  the  defendant  and  confine  him  within  the  four  walls 
of  the  jail.     The  order  of  the  Court  is  surely  not  necessary  to  enable  the 

(a)  5  Stat.  78.     An.  (h)  11  Stat.  31.     I  29.     An. 


8  COLUMBIA,    DECEMBER,    1840.      VOL.  I.  [*11 

defendant  to  be  re-taken.     The  order  of  the  Court  is  of  no  superior  effi- 
cacy to  the  ordinary  process,  which,  by  authority  of  law,  the  plaintiff  has 
a  right  to  have  issued,  for  the  purpose  of  recaption,  and  would,  therefore, 
be  a  superfluous  interference.     If  the  Sheriff  should  refuse  obedience  to 
^,t,-|  such  process,  the  Court,  upon  a  rule,  *would  enforce  it.     It  would 
J  be  idle,  as  well  as  endless,  for  the  Court,  in  anticipation,  to  make 
orders  requiring  public  officers  to  do  their  duty.     To  require  the  Sheriff 
to  confine  the  defendant  within  the  four  walls   of  the  jail,  would  be  to 
prejudge  a  question  which  may  not  be  considered  entirely  clear,  Avhether 
ou  such  a  recaption  the  defendant  would  be  entitled  again  to  the  benefit 
of  the  bounds  ?    When  re-takeu,  the  defendant  will  be  in  custody  of  the 
Sheriff,  with  such  rights  as  the  law  gives  him.     It  is  always  mischievous, 
as  there  is  good  reason  for  saying  that  it  is  incompetent,  for  the  Court  to 
interfere  before  hand,  with  its  advice  upon  a  point  of  law ;  to  express  an 
opinion   before  a  case  has  arisen.     The  course  of  the  plaintiff  being 
plainly  pointed  out  bylaw,  we  must  leave  him  to  pursue  it;  and  also 
leave  the   Sheriff'  and  the  defendant  untrarameled  by  any  expression  of 
opinion,  as  to  the  duty  of  the  one,  or  the  rights  of  the  other. 
The  motion  is  therefore  refused  :  the  whole  Court  concurring. 

See  Mack  Sf  Smith  vs.  Garrett,  10  Rich.  80.     An. 


John  P.  Self  ads.  Thomas  Deloach. 

Where  the  damage  to  a  horse,  (which  has  been  found  within  the  enclosure  of 
another, )  appears  rather  the  result  of  accident  than  design,  and  a  decree  for  the 
plaintiff,  for  the  damage,  has  been  given — a  new  trial  will  be  granted. 

Before  Gantt,  J.,  at  Edgefield,  Fall  Term,  1840. 

This  was  a  case  of  trespass  within  the  summary  process  jurisdiction  of 
the  Court. 

The  plaintiff  had  lost  three  horses  about  the  26th  September,  1839. 
They  broke  into  a  cornfield  of  Daniel  Holland,  for  whom  the  defendant 
was  overseer.  The  defendant  put  them  in  a  lot  or  stable  and  kept  thenl 
*131  ^'^''  ^'^^'*^^^^  ^^"y^'  '"^''f^  "ct  being  *able  to  ascertain  the  owner,  turned 
them  out.  Whilst  in  the  lot,  one  of  the  horses  was  ini'ured  in  one 
of  the  liiiid  legs,  near  the  hock.  One  of  the  witnesses  for'  plaintiff,  in 
giving  defendant's  conversation  about  the  horses,  said  that  the  defendant 
informed  him  that  he  believed  that  the  injury  was  done  by  a  kick  from 
one  of  the  other  liorscs.  The  injury  was  ])roved  to  have  much  impaired 
the  value  of  liic  horse.  The  presiding  Judge  gave  a  decree  for  the 
plaintiff  fcir  $.'J5. 

The  defendant  moves  the  Court  of  Appeals  to  reverse  the  decree,  ou 
the  following  grounds,  taken  on  the  trial  below: 

1.  Tliiit  the  circumstances  of  the  case  showed  no  trespass  on  the  part  of  the 

2.  'J'hat  if  tlie  plaintiir  was  entitled  to  any  action  at  all,  he  was  restricted  to 
the  aclioi.  on  tl.e  case  prcseril)ed  by  the  Act  concerning  estravs,  or  to  a  suit 
for  the  penahy  imposed  by  that  Act. 

3.  liecausc  tho  Statute  of  Limitations  was  a  bar  to  the  action. 


*13]  SELF  ads.  DELOACH.      DANFORTH  VS,  COLVIN.  9 

Curia,  2'>er  Butler,  J,  The  legal  question  in  this  case  arises  out  of 
the  following  state  of  facts  :  The  defendant  found  horses  in  the  enclosure 
of  his  emi>loyer ;  he  caught  and  put  them  in  a  lot  or  stable,  where  he 
kept  them  for  about  three  days ;  and  during  the  time  they  were  confined, 
one  of  them,  a  mare,  was  crippled,  as  it  would  appear,  by  a  kick  from 
one  of  the  other  horses.  There  was  no  evidence  that  the  mare  received 
any  injury  by  the  act,  command,  or  volition  of  the  defendant.  He  did 
not,  directly  or  indirectly,  commit  any  violence  on  the  animal ;  but  the 
injury  which  she  received  was  in  consequence  of  the  confinement.  Now, 
there  could  have  been  no  trespass  in  the  beginning  ;  for  any  one  may  law- 
fully take  up  stock  trespassing  within  his  enclosure,  either  with  a  view  of 
empounding  them  under  the  Act  of  1827, («)  or  proceeding  under  the  law 
concerning  estrays  (b);  or  with  a  view  of  giving  the  owner,  when  known, 
information.  It  would  be  a  hard  proceeding  to  hold  the  person  who  has 
thus  acquired  the  custody  of  stock,  liable  for  an  uninteiitionable  injury 
which  they  may  have  received.  If  one  died,  and  the  injury  was  the  result 
of  negligence  or  unnecessary  detention,  an  action  on  the  case,  or  trover, 
might  lie  for  damages,  but  not  trespass,  which  ^presupposes  direct  r^-,i 
force,  and  a  wilful  wrong.  Self  had  the  license  of  the  law  in  taking  '- 
up  the  horses  ;  and  could  only  be  held  liable  as  a  trespasser  by  a  subse- 
quent abuse  of  it.  In  such  case,  he  might  become  a  trespasser,  ab  initio. 
Notwithstanding  the  injury  which  one  of  the  horses  received,  the  defend- 
ant might  have  justified  himself  by  impounding  them  under  the  Act  of 
1827  ;  or  by  proceeding  under  the  estray  law  ;  but,  he  was  not  bound  to 
do  either,  if  in  good  faith  he  turned  them  out,  after  he  had  ascertained 
their  owner ;  or  had  determined  to  give  up  any  claim  on  them  for  an 
injury  which  they  may  have  done  to  his  crop.  If  defendant  had  unneces- 
sarily worked,  rode,  or  in  any  wise  wilfully  abused  the  horses,  he  might 
have  been  made  liable  as  a  trespasser ;  but  of  this  there  was  no  evidence  ; 
on  the  contrary,  the  injury  the  mare  received  was  rather  the  result  of 
accident  than  attributable  to  design. 
Let  the  defendant  have  a  new  trial. 

(a)   6  Stat.  331.  (&)  5  Stat.  465.     An. 


Jones  and  Danforth  vs.  A.  G.  Colvin  and  wife. 

"Wliere  a  daughter  (an  infant)  resides  with  her  mother,  before  marriage,  it  will  be 
presumed  that  she  was  jiroperly  maintained,  until  the  contrary  is  proved ;  for 
the  mother  is  considered  to  be  the  proper  judge  of  what  is  necessary  for  her,  and 
should  be  consulted  before  a  credit  is  given  to  her.  Vide  Connolly/  ads.  Assignees 
oflhdl,  3  M'C.  Rep.,  6  S.  P. 

Before  Gantt,  J.,  at  Edgefield,  Fall  Term,  1840. 

This  was  an  action  on  merchants'  account,  for  goods  sold  to  Mrs.  Col- 
vin, whilst  a  minor,  and  before  her  marriage.  The  defendants  pleaded 
infancy,  to  which  the  plaintiS's  replied  that  the  goods  were  necessaries. 
The  plaintiffs  proved  their  account.  The  defendants  established  the 
infancy  of  Mrs.  Colvin  at  the  time  the  goods  were  sold,  and  that  she 


10  COLUMBIA,   DECEMBER,    1840.      VOL.  I.  [*14 

^  .-,  lived  *with  her  mother  and  was  properly  maintained  by  her.  The 
-I  point  made  in  the  case  was,  that  as  Mrs.  Colvin,  whilst  single  and 
under  ajre,  lived  with  and  was  properly  maintained  by  her  mother,  she 
could  not  bind  herself  to  a  stranger  for  necessaries.  The  jury,  under  the 
charge  of  the  Judge,  found  a  verdict  for  the  plaintiffs. 

The  defendants  appeal,  and  now  move  the  Court  of  Appeals  for  a  new  trial, 
on  the  grounds  taken  upon  the  circuit. 

Curia,  per  Earle,  J.  The  question  raised  by  the  motion  seems  to 
have  been  directly  decided  in  the  assignees  of  Hull  vs.  Conolly  (3  McC. 
6.)  and  indeed  does  not  appear  to  have  been  then  considered  open  for 
debate.  In  that  case,  as  in  this,  the  infant  defendant  lived  with  her 
mother,  and  although  there  was  no  proof  that  suitable  maintenance  was 
provided,  yet  Mr.  Justice  Nott  held  that  it  ought  to  be  presumed,  until 
the  contrary  be  proved  ;  that  the  mother  was  the  fittest  judge  of  what 
was  necessary  in  the  article  of  clothing,  and  that  the  plaintiff  ought  to 
have  inquired  into  the  circumstances,  and  consulted  the  mother,  before  he 
suflbrcd  the  debt  to  be  contracted.  On  that  ground,  mainly,  was  the  new 
trial  granted.  In  Bainhrulf/e  vs.  Pickering  (Bl.  Rep.  1325),  which  was 
a  similar  action  against  a  female  defendant,  not  of  full  age,  living  with 
her  mother,  who  provided  properly  for  her,  Gould,  J.,  said  the  child,  in 
such  case,  cannot  bind  herself  to  a  stranger  for  what  might  otherwise  be 
allowed  as  necessaries ;  and  that  no  countenance  should  be  given  to  such 
persons  as  euveigle  young  women  into  extravagancies,  under  the  pretext 
of  furnishing  them  with  necessaries,  without  the  previous  consent  of  the 
parent.  It  was  also  held  by  Lord  Kenyou,  in  Ford  vs.  Fothergill  (1 
Esp.  Rep.  211),  and  by  Ch.  J.  Best,  in  Cook  vs.  Denton  (3  Car,  and 
Pay.  114),  and  it  w^ould  be  of  very  mischievous  consequence  if  the  law 
were  otherwise.  The  protection  intended  to  be  afforded  to  infants,  against 
the  improvidence  natural  to  their  inexperience,  would  be  rendered  inef- 
fectual ;  and  the  discretion  and  judgment  of  the  parent,  in  prescribing 
what  tiie  child  shall  wear,  would  be  wholly  superseded.  In  the  case 
before  us,  there  is  no  room  for  presumption,  for  the  proof  is,  that  the 
defendant's  wife,  for  whom  the  goods  were  furnished,  was  suitably  main- 
^jg-|  tained  Ijy  her  mother,  *with  whom  she  lived.  The  goods,  therefore, 
-^  in  a  legal  sense,  were  not  necessaries,  and  she  could  not  bind  her- 
self to  pay  for  them. 

The  motion  is  granted  :  the  whole  Court  concurring. 


S.  "W.  Bentley  ads.  D.  Reynolds. 

Any  wonlrt  occasioning  actual  (lamap;(!  to  one,  are  actionable,  and  it  is  not  ueces- 
Hary  tliat  tlu^y  hIiouM  be  defamatory. 

,Si<l,  this  doctriiir;,  liowovcr,  must  be  taken  subject  to  the  limitation,  that  the  injury 
coiiijilaincl  of  must  not  be  thi!  unlawful  acts  of  others,  because  they  are  answer- 
able themselves,  and  the  damage  sustained  must  bo  the  immediate  couseciueuce 
of  tlie  defendant's  words. 

Before  Evans,  J.,  at  Union,  Spring  Term,  1839. 

This  was  a  special  action  on  the  case.     There  was  a  demurrer,  which 


*lb]  BENTLEY  acls.  REYNOLDS.  ll 

had  been  overruled  by  Judge  Gantt,  at  the  extra  Court  the  week  before. 
I  did  not,  in  consequence,  look  into  the  declaration,  but  tried  the  case  on 
its  merits,  which  will  be  disclosed  by  the  evidence.  The  facts  of  the  case 
were  these  :  The  plaintiff  was  the  owner  of  a  plantation  and  several 
negroes,  with  horses  and  stock.  He  built  two  boats,  with  which  he  started 
to  Columbia,  about  the  13th  December,  183*7,  with  an  intention  to  carry 
freight  to  Charleston.  On  the  26th  December,  Bentley,  the  defendant, 
put  up  an  advertisement,  the  precise  words  of  which  I  do  not  recollect, 
but  in  substance  represented  himself  as  the  owner  of  all  Reynolds'  pro- 
perty in  case  he  did  not  return  ;  and  to  some  of  Reynolds'  creditors  he 
said  that  Reynolds  had  gone  to  Ireland,  or  spoke  of  going  there.  In 
consequence  of  this  advertisement,  and  the  verbal  statements  of  Bentley, 
all  Reynolds'  creditors  sued  out  attachments  and  levied  them  on  his  pro- 
perty, and  some  small  executions  were  levied,  and  a  mare  worth  ninety 
dollars  *was  sold  for  ten.  The  plaintiff  was  not  pressing  the  execu-  r^j-i  w 
tions  until  the  attachments  were  levied.  Reynolds,  in  some  way,  ^ 
got  information  of  what  was  going  on,  and  immediately  came  back  and 
saved  his  property  from  sale,  under  the  attachments,  by  issuing  out  a  writ 
of  replevin.  He  incurred  some  expenses  and  sustained  losses  in  conse- 
quence of  this  conduct  of  the  defendant.  He  paid  a  part  of  the  costs  of 
an  attachment ;  but,  in  general,  the  plaintiffs  paid  the  costs.  He  incurred 
the  expenses  of  the  writ  of  replevin.  This  was  estimated,  at  least,  at 
twenty  dollars  to  the  attorney,  besides  the  cost  of  executing  it.  He  had 
to  confess  a  judgment  to  McClure  for  his  debt.  ]Ie  lost  about  eighty 
dollars  on  the  sale  of  his  mare,  which  sale  would  not  have  been  made  but 
for  the  advertisement  and  rumors  circulated  by  the  defendant.  The  de- 
fendant attempted  to  justify  all  these  things,  by  proving  that  Reynolds 
had  executed  a  paper  to  him,  whereby  he  appointed  him  his  heir,  or  agent, 
to  take  possession  of  his  property  ;  and  if  he  never  came  back,  to  be  his 
forever.  This  was  attacked  as  a  forgery,  or  a  fraud,  and  I  presume  was 
so  regarded  by  the  jury.  I  was  of  opinion,  and  so  charged  the  jury,  that 
the  plaintiff  could  not,  in  this  action,  recover  vindictive  damages.  The 
true  measure  of  damages  was  the  loss  actually  sustained.  The  proof  of 
actual  loss  and  expenses  was  :  the  cost  he  paid  in  one  of  the  attachments, 
the  cost  of  McClure's  action  against  him,  which  he  would  not  have  sus- 
tained but  for  the  defendant's  conduct,  the  loss  on  the  sale  of  the  mare, 
and  the  expenses  of  the  writ  of  replevin  These  might  be  estimated  at 
more  than  $100.  He  had  also  incurred  expenses  in  returning  from 
Columbia,  and  losses  by  the  detention  of  his  property  in  the  hands  of  the 
officers  who  had  levied  the  attachments  and  executions.  I  thought,  and 
so  told  the  jury,  they  ought  to  give  a  verdict  for  all  these,  and  any  other 
losses  or  expenses  which  the  plaintiff  had  sustained  by  reason  of  the 
defendant's  conduct,  without  abating  one  cent  from  the  amount  which  the 
evidence  would  warrant.  The  jury  found  for  the  plaintiff,  $300.  The 
notice  of  appeal  is  annexed. 

Curia,  per  Evans,  J.     This  is  an  action  on  the  case.     The  declara- 
tion sets  out,  with  suEBcient  certainty,  the  following  facts,  viz.:    1.   That 
the  plaintiff,  a  citizen  of  Union   district,  *was  absent  from  home,  r-tio 
attending  to  some  private  business,  at  or  in  the  vicinity  of  the  town  ^ 
of  Columbia.     2.    That  whilst  he  was  thus  absent,  the  defendant,  falsely 


12  COLUMBIA,    DECEMBER,    1840.      VOL.  I.  [*18 

and  maliciously,  and  with  intent  to  injure  him,  and  to  produce  a  belief 
amono-st  his  creditors  that  the  plaintiff  was  unable  to  pay  his  debts,  and 
had  absconded,  and  so  concealed  himself  that  the  ordinary  process  of  law 
could  not  be  served  upon  him,  said,  of  and  concerning  him,  that  the 
plaintiff  had  left  the  country,  and  would  not  return  ;  that  all  his  pro- 
perty, consisting  of  land  and  negroes,  and  other  chattels,  belonged  to 
him,  the  defendant,  until  the  plaintiff's  return  ;  and  if  he  never  returned, 
was  his,  absolutely.  3.  That  in  consequence  of  these  false  reports,  divers 
of  the  plaintifi"'s  creditors,  believing  him  to  be  an  absconding  debtor,  sued 
out,  and  levied  on  his  property,  divers  domestic  writs  of  attachment, 
which  they  would  not  have  done,  but  for  the  false  statements  of  the 
defendant.  4.  That  by  reason  of  the  premises,  the  plaintiff  was  obliged 
to  return,  suddenly,  to  Union,  leaving  his  business  at  and  near  Columbia 
unfinished,  whereby  he  was  put  to  great  tronlile  and  expense  ;  and  that 
he  sustained  great  loss  and  damage  in  paying  the  costs  of  the  attach- 
ments, and  discharging  his  property  from  the  liens  thereof.  To  this 
declaration  there  was  a  general  demurrer,  which  was  overruled  by  my 
brother  Gantt,  at  the  extra  Court  for  Union,  in  March,  1839,  and  the 
ease  came  on  for  trial,  before  me,  at  the  regular  term  of  the  Court  the  week 
after.  On  the  trial,  all  the  material  allegations  in  the  declaration  were 
proved  by  witnesses,  and  the  plaintiff  had  a  verdict.  The  defendant 
a])pealed,  and  moved  this  Court  to  reverse  the  decision  of  the  Circuit 
Court  on  the  demurrer,  on  the  ground  that  no  action  lies  on  the  case 
made  in  the  declaration  and  proved  on  the  trial.  There  are  some  other 
grounds,  l)ut  this  is  the  only  one  which  it  is  thought  necessary  to  con- 
sider. The  case  has  been  held  under  advisement  for  some  time,  on 
account  of  some  deversity  of  opinion  among  us.  During  this  interval,  I 
liave  turned  my  attention  particularly  to  that  class  of  wrongs,  for  remedy 
of  which  an  action  on  the  case  lies,  and  the  result  of  my  examination  has 
been,  that  the  imagination  of  man  can  scarcely  conceive  of  a  case  where 
one  man  has  sustained  a  direct  pecuniary  loss  by  the  unlawful  act,  the 
fraudulent  conduct,  or  the  malicious  words,  of  another,(a)  for  which  an 
*191  ^^'-'^'^  ^^  ^^'®  *case  will  not  lie.  The  broad  rule,  as  laid  down  in 
-'  Comyn's  Dig.,  is,  "that  where  one  man  has  sustained  a  temporal 
loss,  or  damage,  by  the  wrong  of  another,  he  may  have  an  action  on  the 
case,  to  be  repaired  in  damage."  I  do  not  propose  to  consider  the  great 
variety  of  cases  in  which  relief  is  granted  in  this  form  of  action,  but  shall 
condiie  myself  solely  to  the  inquiry,  whether  the  plaintiff's  action  can  be 
sustained,  according  to  the  rules  of  law,  and  the  authority  of  adjudged 
cases.  To  do  this,  we  must  understand  the  proper  import  of  the  defend- 
ant's words,  as  laid  in  the  declaration,  and  proved  on  the  trial.  As  I 
understand  them,  they  mean  :  1.  That  the  i)laintiff  had  conveyed  to  the 
defendiiht  all  his  property,  without  making  any  provision  for  his  debts, 
and  conso(iiieiitly,  intended  to  defraud  his  creditors.  2.  That  he  had 
removed  or  was  removing,  out  of  the  State,  without  paying  his  debts,  and 
was  theref«M-e  either  an  absent  or  absconding  debtor.  These  words,  if 
8pokeii  of  a  mcrciuuit  or  tradesman,  would  have  been  actionable  per  se.(b) 
They  are  defamatory,  for  it  is  said  in  1  Com.  Dig.,  2G1,  (title  action  on 

(a)    Cfimphdl  vs.  Kinloch,  9  Rich.  310.     An. 
{b)  ChcvciS,  19.     An. 


19] 


BENTLEY  ads.  REYNOLDS. 


the  case,  D.  25,)  that  for  saying  of  a  merchant  or  tradesman,  "  that  he  is 
fled  and  gone,  and  I  shall  lose  my  debt ;"  or,  "  that  he  is  run  away,  and 
never  will  return,"  an  action  lies.  Now,  it  cannot  be  questioned  that 
defamatory  words,  which,  if  spoken  in  relation  to  one's  trade  or  employ- 
ment, are  actionable  pei"  se,  the  same  words,  if  spoken  of  another  class 
of  persons,  are  actionable,  if  the  person  of  whom  they  are  spoken  has 
sustained,  in  consequence  thereof,  a  direct  pecuniary  loss.  But  the 
authorities  go  still  further  than  this.  In  Chitty's  Practice,  (1  vol.  44,) 
after  enumerating  the  various  classes  of  words  which  are  actionable  on 
the  presumption  of  damage,  and  dividing  them  into  four  classes,  he  says  : 
"5th,  any  words  occasioning  actual  damage."  Thus,  in  Shepard  vs. 
Wakeman,  (1  Lev.  58,)  "  Where  the  plaintiff  was  to  be  married  to  such 
a  one  who  intended  to  take  her  to  wife,  and  the  defendant,  falsely  and 
maliciously,  to  hinder  the  marriage,  wrote  a  letter  to  that  person,  that 
the  plaintiff"  was  contracted  to  him,  whereby  she  lost  her  marriage.  After 
verdict  for  the  plaintitf,  it  was  moved  that  the  action  lieth  not,  the  de- 
fendant claiming  title  to  her  himself,  like 'as  Garad's  case,  4  Co.,  for 
slander  of  title.  But  after  divers  motions,  the  plaintiff"  had  judgment,  for 
it  is  found  malicious  and  false. "  This  case  fully  sustains  the  text  in  Chitty, 
*that  words  occasioning  actual  damage,  are  actionable,  and  that  it  r^-nci 
is  not  necessary  they  should  be  defamatory.  This  doctrine,  how-  ^ 
ever,  must  be  taken  subject  to  the  limitation  that  the  injury  complained 
of  must  not  be  the  unlawful  acts  of  others,  because  they  are  answerable 
themselves,  and  the  damage  sustained  must  be  the  immediate  conse- 
quence of  the  defendant's  words.  8  T.  R.,  1  ;  2  Stark.  Ev.,  872. (a) 
In  conclusion,  I  am  satisfied  the  loss  sustained  by  the  plaintiff"  was  the 
direct  consequence  of  the  false  and  malicious  assertions  of  the  defendant. 
It  is  so  alleged  in  the  declaration,  and  was  so  proved  on  the  trial;  and 
also,  that  the  suing  out  the  attachments  was  not  such  an  act  as  would 
have  sustained  any  action,  against  those  who  sued  them  out,  by  the 
plaintiff.  It  is  alleged  in  the  declaration,  and  the  demurrer  admits  it, 
that  the  design  of  the  defendant  was  to  produce  a  belief  among  the 
plaintiff's  creditors,  that  he  had  absconded,  and  so  concealed  himself  that 
the  ordinary  process  of  law  could  not  be  served.  He  has  no  ground  to 
complain  that  they  believe  him,  and  acted  accordingly. 
The  motion  dismissed. 

Gantt,  O'jSTeal,  Earle,  Butler,  JJ.,  concurred.     Eichardson,  J., 
dissented. 

Dawkins,  for  appeal.  Thompson,  contra. 

(a)  See  Kelly  vs.  City  Council,  4  Rich.  431.     Harrison  vs.  BerUeij,  1  Strob.  54?. 
Street  vs.  Augusta  Insurance  Co.  11  Ricli.     Also  cases  cited  2  Rice's  Dig.  295.     An. 


14  COLUMBIA,    DECEMBER,    1840.      VOL.  I.  [*21 

*21]     *TnoMAS  Ltles  vs.  Administrators  op  James  McFie. 

A  merchant  having  in  store  the  cotton  of  divers  persons  to  ship,  does  ship  it,  and 

it  is  lost  by  some  means  :     Held,  that  assumpsit  is  the  proper  foiTQ  of  action  to 

recover  the  price  of  the  cotton. 
Every  person  who  undertakes   any  duty,  trust,  office,  or  employment,  impliedly 

contracts  with  those  who  entrust  or  employ  him,  to  perform  his  undertaking 

with  skill,  diligence  and  integrity ;  and  the  employer  may  maintain  an  action  of 

assumpsit  against  him  for  an  injury  which  he  has  sustained  through  the  absence 

of  any  of  these  qualities. 

Before  Gantt,  J.  at  Columbia,  Spring  Term,  1840. 

This  was  an  action  of  assumpsit  to  recover  from  the  administrators  of 
McFie,  (a  bailee)  for  loss  which  accrued  in  the  shipment  of  thirty-two 
bales  of  cotton  belonging  to  the  plaintiff,  and  which  by  some  means  were 
lost  to  the  owner — Mr.  Floyd  being  the  carrier. 

In  viewing  the  several  grounds  of  appeal,  all  of  which  have  reference 
to  the  record  and  the  evidence,  they  must  constitute  my  report.  I  have 
only  further  to  add,  that  if  the  case  admitted  of  a  remedy  by  action,  case 
and  not  assumpsit,  would,  in  my  view,  have  been  the  appropriate  remedy. 
However  this  may  be,  it  is  very  clear  to  my  mind,  that  the  evidence 
furnished  by  the  trial  was  altogether  insufficient  in  law  to  support  the 
verdict  which  was  found  by  the  jury. 

I  enclose  my  notes  of  the  testimony,  and  the  counsel  for  the  appellants 
will  produce  the  record. 

The  defendants  will  move  the  Appeal  Court  to  grant  the  motion  for  a  non- 
suit made  in  the  Court  below — 

1.  Because  the  action  ought  to  have  been  case,  and  not  assumpsit. 

2.  The  declaration  contains  no  count  upon  a  naked  bailment,  and  no  proof 
of  compensation  for  the  shipping  was  offered. 

3.  "Want  of  ordinary  care  and  diligence  could  not  be  legally  inferred  from 
the  evidence. 

4.  The  case  made  was  a  naked  bailment,  and  the  facts  proved  did  not  amount 
to  gross  neglect. 

5.  If  the  verbal  message  sent  by  plaintiff's  son  amounted  to  specific  instruc- 
itno]  tions  whicli  the  intestate  was  bound  to  obey,*  yet  there  was  no  count  in 

•1  Die  declaration  upon  which  the  intestate  could  be  made  liable  for  failing 
to  comply  tlierewith. 

C.  'i'he  plaintiff  elected  his  remedy  by  suing  the  Insurance  Company. 

If  the  motion  for  nonsuit  fail,  the  defendants  will  rely  upon  the  foregoing, 
as  well  as  the  following  grounds  for  a  new  trial : 

1.  'I'iiat  the  intestate  acted  with  good  faith,  and  exercised  due  diligence. 

2.  'I'iiat  lie  did  not  know  Floyd's  character,  at  the  time  of  the  shipment,  to 
be  had,  nor  was  it  sliown  to  bo  so  until  after  the  loss  of  the  cotton. 

.3.  Tliat  the  intestate  insured  the  cotton,  and  thus  obviated  all  risk  from  that 
cause,  if  any  such  risk  existed. 

_  4.  That  the  message  by  the  plaintiff's  son  did  not  amount  to  express  instruc- 
tions which  the  intestate  was  bound  to  obey;  they  were  at  most  merely 
advisory. 

5.  'I'liere  was  no  proof  of  wilful  disobedience  thereof. 

f).  The  written  instructions  gave  the  intestate  discretionary  power  both  in 
relation  to  tlie  shipment  and  sale. 

7.  TIh!  intestate  wrote  to  plaint  iff  that  he  did  not  hold  himself  bound  for  the 
oss;  plaintifT  aor|uiesced  in  this,  and  instituted  no  suit  against  McFie  in  his 
lifetime,  hnf,  on  tlie  contrary,  sued  the  Insurance  Company. 
_  H.  If  the  intestate  reccMved  from  Kirkpatriek  a  part  of  his  commissions,  which 
is  denied,  yet  that  was  no  compensation  moving  from  plaintiff,  as  to  whom  the 
case  IS  a  mere  naked  bailment. 


*22]  LTLES  VS.  m'fie.  15 

9.  The  verdict  was  against  the  opinion  of  the  presiding  Judge. 

Curia,  per  Richardson,  J.  To  tlie  brief  report  of  the  presiding 
Judge,  it  may  be  necessary  to  add  the  following  statement :  On  the  13th 
January,  1836,  the  intestate,  James  McFie,  acting  as  the  agent  of  the 
plaintiff,  Thomas  Lyles,  and  having  in  store,  for  him,  thirty-two  bales  of 
cotton,  to  be-  sent  to  Charleston,  shipped  the  cotton,  together  with  forty- 
six  other  bales  of  cotton,  belonging  to  J.  McLemore,  on  board  the  boat 
of  Jesse  Floyd,  himself,  the  said  Floyd,  being  the  patroon  of  the  boat,  as 
well  as  owner.  The  whole  of  the  cotton  disappeared,  under  circumstan- 
ces which  justified  the  suspicion  *that  Floyed  had  fraudulently  r^go 
converted  the  whole  cargo  into  his  own  purposes.  But  Floyd  L 
alleged  that  the  boat  and  cargo  were  burnt,  by  misfortune,  on  Cooper 
river.  After  shipping  the  cotton,  James  McFie  used  the  precaution  to 
have  the  cotton  fully  insured  in  Charleston  ;  and,  after  the  loss,  a  suit  at 
law  was  brought  uyiou  the  policy  of  insurance.  But  the  suit  failed,  by 
reason  of  the  alleged  fraud  of  the  patroon  of  the  boat,  beiiig  also  owner. 
(See  Frazier  &  Go.  vs.  F.  <e  M.  Co.,  Cheves,  123.)  James  McFie  de- 
parted this  life,  and  Thos  Lyles  then  instituted  this  action  to  recover 
the  value  of  his  thirty-two  bales  of  cotton  ;  and  has  recovered  a  verdict. 
The  administrators  appeal,  and  claim,  first,  a  non-suit,  upon  the  legal 
ground,  that  the  action  of  assumpsit  does  not  lie  in  such  a  case  ;  and 
secondly,  a  new  trial,  upon  the  allegation  that  the  evidence  of  the  case  is 
insufficient  to  support  the  verdict.  Upon  the  question,  whether  the 
action  of  assumpsit  does  lie,  and  which  has  been  gravely  and  impressively 
controverted  on  the  part  of  the  administrators,  I  have  been  unalile,  apart 
from  the  importance  of  the  case,  and  the  peculiar  misfortune  attending 
the  cotton,  to  feel  the  difficulties  supposed  by  the  counsel.  A  merchant 
having  in  store  the  cotton  of  divers  persons,  to  ship,  let  it  be  admitted, 
at  his  own  discretion,  does  so  ship  it,  and,  of  his  own  accord,  has  the 
cotton  insured.  I  can  perceive,  in  such  a  ti'ansaction,  nothing  but  a  con- 
tract, which  has  been  either  expressly  made  between  the  parties,  or  is 
plainly  implied,  by  the  undertaking  and  conduct  of  the  merchant.  Doing 
the  work  implies  the  contract.  If  the  cotton  had  arrived  safe,  and  been 
taken  by  the  owners  out  of  the  hands  of  the  consignee  in  Charleston,  I 
cannot  question  that  McFie  might  have  brought  his  action,  either  for 
customary  commissions,  or,  upon  a  quantum  'meruit  for  such  services. 

Suppose,  on  the  other  hand,  that  McFie  had  disposed  of  the  cotton  in 
any  other  way,  as  to  his  own  use,  or  that  of  a  third  party,  or  sold  or  in- 
jured it.  It  is  plain,  that  assumpsit  upon  an  express  or  implied  contract, 
would  have  been  a  proper  form  of  action  against  him.  It  seems  plain, 
then,  to  my  understanding,  that  we  are  to  look  upon  Mr.  McFie,  either 
as  a  professional  merchant,  factor  or  broker,  acting  in  his  calling,  for  the 
usual  recompense,  in  money.  In  other  words,  as  a  bailee,  for  the  hire  of 
his  services  ;  which  species  of  bailment  warrants  reasonable  skill  and 
diligence.  In  either  character,*  his  own  acts  indicate  a  contract,  r^nt 
express  or  implied,  with  the  owners  of  the  cotton.  And  assumpsit  ^  " 
is  a  proper  and  legal  form  of  action,  in  all  such  cases.  "  Every  person," 
(says  Leigh,  p.  2,)  "who  undertakes  any  duty,  trust,  office,  or  employ- 
ment, impliedly  contracts  Avith  those  who  entrust  or  employ  him,  to  per- 
form his  undertaking  with  skill,  diligence,  and  integrity  ;  and  the  em- 
ployer may  maintain  assumpsit  for  any  injury  which  he  has  sustained, 
through  the  absence  of  any  of  those  qualities."    See  also,  1  H.  Blk.  158  ; 


16  COLUMBIA,   DECEMBER,    1840.      VOL.  I.  [*24 

8  East,  3-18;  3  Bl.  Com.  163;  B.  N.  P.  Y3 ;  2  Ch.  117  ;  1  Sehv.  431. 
These  authorities  are,  assuredly,  conclusive,  aud  leave  no  doubt,  that 
assumpsit  is  the  proper  form  of  action  in  the  case  before  the  Court. 
From  the  same  authorities,  it  is  still  more  obvious,  that  the  person  em- 
ploved  is  bound  to  perform  his  undertaking,  with  skill,  diligence,  and 
integrity.     But  let  me  add  one  more  authority,  to  bring  the  general  prin- 


and  services,)  and,  "Locatio  custodioi,"  &c.  He  includes  under  the  last 
head,  kc,  "warehousemen  and  wharfingers.  And  to  these  maybe  added 
a  class  of  bailees,  known  in  this  country  by  the  term  forwarding-men,  or 
merchants."  "  They  are  all  responsible  for  want  of  good  faith,  of  reason- 
able care,  and  ordinary  diligence."  This  rule  of  law  brings  us  to  the 
consideration  of  the  second  head  of  the  appeal,  which  involves  the  ques- 
tien,  does  the  evidence  justify  the  conclusion,  that  McFie  failed  in  dili- 
gence or  care  ? 

Upon  the  motion  for  a  new  trial,  as  far  as  it  depends  upon  the  evidence, 
there  is  room  for  a  difference  of  opinion.  An  impartial  observer  might 
well  hesitate  on  which  side  to  lay  the  burthen  of  so  unlooked  for  a  mis- 
fortune, as  the  loss  of  the  whole  cargo.  Both  parties  appear  morally 
Ijlameless.  But  the  cotton  has  been  lost,  to  one,  or  both  of  them;  and 
although,  in  all  probability,  the  loss  was  owing  to  the  misconduct  of 
Floyd  alone,  yet  the  Court  has  to  decide  whether  it  shall  fall  on  the 
plaintiff  or  the  defendants,  leaving  the  unfortunate  party  to  look  eventu- 
ally, for  redress,  to  Floyd.  This  Court  does  not  adjudicate  upon  the 
evidence  of  the  case,  although  it  frequently  orders  a  re-consideration  by 
the  jury.  It  is  certain  that  McFie  did,  in  fact,  employ  an  unfortunate, 
^f,^-j  unsafe,*  and  very  susi)icious  carrier;  which,  under  the  whole  evi- 
"'  -J  deuce  adduced,  gave  ground  for  the  conclusion,  that  he  acted  with- 
out reasonable  skill  and  vigilance,  if  not  with  positive  negligence;  which 
would  be  enough  to  render  him  liable.  Story  Agency,  183  ;  Livermore, 
330  ;  Sto.  Bail.  4  ;  Kent,  and  the  cases  there  quoted. 

The  reply  to  this  view  was,  that  McFie  insured  the  cotton,  of  his  own 
accord.  But  such  a  precaution  could  not  change  the  character  of  the 
original  negligence.  In  referance  to  it,  the  insurance  could  only  be  in- 
tended for  a  remedy  against  consequences  that  might  follow.  In  fact, 
the  question  often  occurs  to  the  mind — why  did  McFie  insure  only  in 
this  particular  case,  with  this  particular  jjatroon,  as  set  forth  in  his  letter 
of  13th  July,  1838?  Does  it  not  argue  great  consciousness  that  this 
cargo  was  in  more  than  common  danger  ?  I  think  the  fact  of  his  in- 
fiuring  of  jiis  own  accord,  enforces  the  conclusion  drawn  against  by  the 
jury,  lie  had  been  inqirudent,  and  would  try  to  prevent  possible  evil. 
Jiutthe  queslion  of  his  liability  turns  upon  the  original  imprudence.  If 
lie  was  ever  liable,  he  remained  so,  as  well  after  as  before,  with  or  with- 
out insuring.  A  nd  the  jury  having  so  found,  the  Court  feels  constrained 
lo  respect  ijie  verdict,  as  a  legitimate  conclusion  from  the  facts. 

The  motion  is  therefore  dismissed. 

Evans,  BuTLEn,  Earle,  JJ.,  concurred. 

Gantt,  J.,  dissented. 

Tradcwcll  and  UeSaussure,  for  the  motion,  niack  and  Gregg,  contra. 


'26]  WATTS    VS.  TODD.  17 


*A.  Watts  vs.  William  Todd.  [*2G 

riaintifF  was  employed  by  defendant,  to  make  a  crop  with  him,  in  1839,  and 
was  to  receive  for  his  services  one-fourth  of  the  croj)  made.  About  the  last  of 
August,  a  misunderstanding  arose.  Plaintiff  was  dismissed,  and  in  September 
following,  commenced  this  action  :  Held,  that  plaintiflf,  by  commencing  his  action 
in  September,  after  he  was  dismissed,  treated  the  contract  as  being  rescinded, 
and  has  waived  his  right  to  recover  entii-e  damages  for  the  whole  year ;  and  has 
restricted  his  right  of  recovery  to  a  compensation  for  liis  services  on  a  quantum 
meruit. 

Before  Earli^,  J.,  at  York,  Fall  Term,  1840. 

The  plaintiif  was  employed  by  the  defendant  to  make  a  crop  with  him, 
in  1839,  and  agreed  to  give  him  one-fourth.  About  the  last  of  August, 
a  misunderstanding  arose,  in  consequence  of  an  occasional  absence  of  the 
plaintiff,  and  he  wns  dismissed  by  the  defendant  from  his  employment,  and 
refused  permission  to  return,  on  his  application  to  do  so.  On  the  2Gth 
of  Se})tember,  he  brought  this  action  of  assumpsit.  There  were  two 
counts  on  a  special  parol  agreement,  and  a  general  indebitatus  assumpsit 
for  work  and  labor.  He  claimed  the  value  of  his  year's  services,  or  the 
value  of  one-fourth  of  the  crop. 

It  appeared  in  evidence,  that  there  was  a  special  agreement,  in  writing, 
differing  in  some  slight  particulars  from  the  parol  agreement  set  out  in 
the  declaration.  For  that  reason,  and  also  that  the  plaintiff"  had  brought 
his  action  before  the  expiration  of  the  terra  for  which  he  had  been 
employed,  I  held  that  he  could  only  recover  on  the  general  indebitatus 
assumpsit  count. 

It  was  proved  that  the  crop  was  laid  by  before  the  plaintiff  was  dis- 
missed :  and  that  five  hundred  bushels  of  corn  were  made,  of  which  the 
plaintiff's  share  would  have  been  one  hundred  and  twenty-five  bushels. 
To  the  value  of  this  the  jury  added  a  reasonable  allowance  for  his  share 
of  the  fodder  supposed  to  be  made,  there  being  no  cotton  or  other  crop 
planted.  They  then  deducted  the  value  of  the  plaintiff's  services  for  the 
remainder  of  the  year,  and  some  other  items  of  discount,  which  were 
proved  to  be  due  the  defendant,  which  sums  united,  exceeded  the  value 
of  plaintiff's  share  of  the  crop ;  and  they  found  a  verdict  for  the  defendant, 
On  the  proof,  I  thought  the  plaintiff  should  have  recovered  something. 
Yet,  if  the  jury  could  find  less  than  the  value  of  the  year's  *services  p^^,- 
on  the  indebitatus  count,  as  they  were  instructed,  I  do  not  perceive  '- 
that  their  mode  of  assessment  was  wholly  unreasonable. 

The  grounds  of  appeal  are  subjoined. 

GROUNDS    OF    APPEAL. 

1.  Because  the  jury,  in  rendering  their  verdict,  estimated  the  labor  of  the 
plaintiff  per  month,  lower  than  the  testimony  on  that  point  would  justify  them. 

2.  That  the  verdict  was  entirely  contrary  to  the  evidence,  there  being  no 
competent  testimony  on  which  they  could  render  such  a  verdict. 

3.  Because  the  plaintiff  should  have  been  allowed  I'or  the  whole  year's  labor; 
the  defendant  having  dismissed  him  without  cause. 

4.  Because  there  was  not  a  particle  of  testimony  to  justify  the  jury  iu  finding 
for  the  defendant,  on  the  discount. 

5.  Because  the  jury  gave  a  verdict  contrary  to  the  charge  of  the  presiding 
judge. 

YoL.  I.— 2 


18  COLUMBIA,    DECEMBER,    1840.      VOL.  I.  [*27 

6.  Because  his  Honor  charged  the  jury  that  the  phiintiff  could  not  recover 
for  the  whole  year's  labor. 

Curia,  per  Earle,  J  It  is  needless  to  refer  to  the  well  established 
rule  on  the  subject  of  damages,  in  cases  of  entire  contract.  Such  was 
the  agreement  between  the  plaintiff  and  defendant  here.  If  the  plaintiff 
had  performed  his  contract  to  the  end,  he  would  have  been  entitled  to  his 
full  wages  for  the  year.  So,  also,  if  ready  and  willing  to  perform,  he  was 
prevented  from  it  by  the  defendant,  and  dismissed  without  cause,  he  would 
have  been  entitled  to  full  wages.  But,  in  such  case,  he  should  treat  the 
contract  as  subsisting  to  the  end  of  the  year ;  and  could  not  recover 
upon  it,  until  the  expiration  of  the  term  for  which  he  was  employed. 
Without  noticing  the  variance  between  the  parol  agreement  declared  on, 
and  the  written  agreement  proved  in  evidence,  it  is  enough  to  remark, 
that  the  plaintiff,  by  commencing  his  action  in  September,  immediately 
after  he  was  dismissed,  has  treated  the  contract  as  being  rescinded,  and 
put  an  end  to  ;  has  waived  his  right  to  entire  damages  for  the  whole 
year ;  and  has  restricted  his  right  of  recovery  to  a  compensation  for  his 
services  on  a  quantum  meruit. 

^cjn-|  *Although  there  may  be  some  reason  to  suppose  that  the  jury 
-I  estimated  the  value  of  the  plaintiff's  services  at  a  less  sum  than  he 
did  himself,  and  less  than  did  some  of  his  witnesses,  yet,  as  they  violated  no 
rule  of  law,  and  adopted  no  arbitrary  standard,  there  is  no  good  reason 
to  disturb  the  verdict. 

The  motion  is  therefore  refused :  the  whole  court  concurring. 

Witherspoon,  for  the  motion.     Williams  and  Claicson,  contra. 

See  DillardYS.  Wallace,  post.  484.  Ever  vs.  Stubbs,  1  Hill,  384;  5  Rich.  28,  46  C, 
522;  2Sp.  124. 


John  R.  Buce  vs.  E.  L.  Henagan. 

Discount  cannot  he  offered  in  evidence  under  the  general  issue,  or  considered  as 
payment;  and  tlie  defendant  cannot  be  permitted,  without  notice,  to  avail 
liimself  of  a  separate  cause  of  action,  which  the  plaintiff  cannot  be  prepared  to 
resist. 

Before  Biciiardson,- J.,  at  Marlborough,  Fall  Term,  1840. 

This  was  an  action  on  merchants'  account.  Mr.  Buce  proved  his  own 
account  by  his  books.  He  further  stated  that  he  had  received,  in  1834, 
or  1835,  for  the  defendant,  $55,  and  also  $13  or  $14,  but  he  had  credited 
tho.se  sums  upon  a  note  of  McLeod's,  to  himself  lie  said,  that  in  1835, 
the  defendant  informed  him  he  had  demands  on  McLeod  ;  but  in  1837, 
the  witness  received  a  letter  from  McLeod,  denying  defendant's  demands, 
of  which  he  informed  defendant.  Defendant  afterwards  made  no  demand 
of  the  witness  for  the  money.  This  evidence,  brought  out  upon  the 
oross-cxainiiiatioii  of  the  plaintiff,  IJnce,  was  objected  to,  because  no  dis- 
count had  b(M'n  pleaded  ;  but  J  held  it  competent,  under  the  general  issue, 
to  diminish  the  amount  of  the  plaintiff's  account,  by  so  much  money 


*28]  BUCE  vs.  HENAGAN.  19 

received  for  the  defendant.     It  might  be  considered  as  so  *inuch  r^<:)n 
paid,  the  plaintiff  having  transferred  the  money  to  the  credit  of  ^  "^ 
McLeod's  note  to  himself,  in  or  after  1831. 

I  so  charged  the  jury,  and  advised  them  to  do  justice  between  the 
parties,  and  allow  the  defendant  credit  for  the  money,  unless  he  had  sanc- 
tioned the  credit  on  McLeod's  note.  That  they  might  do  this,  notwith- 
standing the  want  of  the  notice  of  discount.  The  jury  found  for  the 
plaintiff  a  small  balance,  having  evidently  allowed  the  defendant  credit 
for  the  money  received  for  him  by  the  plaintiff;  and  the  plaintiff  appeals. 

GROUNDS    OF    APPEAL. 

1.  Because  his  Honor  admitted  the  defendant  to  ofiTer  in  discount  a  claim 
against  the  plaintiff,  of  old  standing,  without  having  given  the  phiiutifF  any 
notice  of  discount  previous  to  or  at  the  trial,  in  which  case,  plaintiff  could  have 
proved  that  defendant's  claim  had  been  paid. 

2.  Because  his  Honor  charged  the  jury  that  they  might  regard  defendant's 
claim,  which  originated  in  the  years  1834  and  1835,  as  a  payment  of  the  plain- 
tiff's account,  which  was  all  contracted  subsequent  to  December,  1838  ;  whereas, 
there  was  no  evidence  of  any  demand  made  on  plaintifi"  for  said  discount. 

o.  Because  his  Honor  recommended  the  jury  to  do  what  they  should  con- 
sider justice  between  the  parties,  without  regard  to  any  distinction  between 
discount  and  payment. 

Curia,  pe?"  Earle,  J.  Payment  seems  necessarily  to  imply  the  assent 
of  him  who  claims  the  benefit  of  it;  and  it  is  difficult  to  conceive  of  a 
payment  which  precedes,  several  years  in  point  of  time,  the  existence  of 
the  debt  which  it  is  alleged  to  extinguish,  unless  there  be  some  proof  of 
an  agreement  between  the  parties  so  to  consider  it.  A  counter  demand 
is  not  payment.  If  the  plaintiff  had  received  the  defendant's  money  after 
his  cause  of  action  arose,  he  would  not  have  been  authorized  to  apply 
it  as  a  payment,  without  the  assent  of  defendant.  The  money  received 
by  the  plaintiff  here,  was  paid  him  four  or  five  years  before  his  cause  of 
action  arose  against  the  defendant;  during  that  time  he  was  liable  for  so 
much  money  had  and  received  to  the  defendant's  use,  as  a  separate  and 
independent  cause  of  action.  *If  barred  by  the  Statute  of  Limita-  r^on 
tions,  before  the  account  sued  on  was  made,  it  cannot  be  supposed  L 
that  there  was  any  connection  between  them,  as  there  is  certainly  no 
proof  of  any.  If  not  barred,  and  the  defendant  had  brought  an  action 
against  the  plaintiff",  could  the  plaintiff  have  relied  on  his  present  demand 
as  a  payment  ?  Certainly  not.  Discount  and  payment  are  not  con- 
vertible terms.  Discount  may  admit  the  existence  of  the  plaintiff's 
demand  ;  payment  implies  that  it  has  been  extinguished.  If  the  plaintiff 
had  applied  the  money  received  by  him,  as  a  payment  of  the  demand  sued 
on,  it  would  have  been  at  the  option  of  the  defendant  to  repudiate  it  or 
not.  He  might  still  have  recovered  it  by  action,  and  hence  disputed  the 
account.  It  is  enough  for  the  purpose  of  this  motion,  to  say,  that  if  the 
defendant's  demand  against  the  plaintiff  was  a  proper  subject  of  discount 
at  all,  it  cannot,  under  the  general  issue,  be  considered  as  payment ;  and 
the  deiendaut  cannot  be  permitted,  without  notice,  to  avail  himself  of  a 
separate  cause  of  action,  which  the  plaintiff"  cannot  be  prepared  to  resist. 

The  motion  is  granted :  the  whole  court  concurring. 

Bobbins  and  Mclver,  for  the  motion.  J.  E.  Davvl,  co!:tra. 
Infra,  335.     An. 


20  COLUMBIA,    DECEMBER,    1840.      VOL.  I.  [*31 


*31]  *DoRiNDA  Beaty  vs.  John  Hearst. 

Want  of  notice,  is  no  ground  to  oppose  the  confinnation  of  the  return  of  the 
Commissioners  to  a  -writ  of  Admeasurement  of  Dower.  Where  the  return  is 
perfect,  and  exactly  in  conformance  with  legal  rules,  and  is  verified  by  the  oath 
of  all  the  Commissioners,  it  is  entitled  to  full  credit,  rather  than  the  exparte 
affidavit  of  two  of  them. 

Before  Earle,  J.,  at  Abbeville,  Fall  Term,  1839. 

A  writ  of  Admeasurement  of  Dower  bad  been  directed  to  five  com- 
missioners, to  lay  off  the  demandant's  dower,  or  assess  its  value,  in 
certain  lands  in  Abbeville.  To  this  writ  the  five  commissioners,  under 
their  hands  and  seals,  made  return,  that  being  first  duly  sworn,  they  went 
upon  the  land,  and  appraised  its  value,  at  the  time  of  the  alienation  by 
the  husband,  at  the  sum  of  one  thousand  dollars,  and  assessed  the  sura  of 
one  hundred  and  sixty-six  dollars  and  sixty-six  and  three-fourth  cents, 
with  interest  from  the  24th  day  of  November,  1837,  the  day  of  the  death 
of  the  husband,  in  lieu  of  dower. 

On  the  coming  in  of  the  return,  and  motion  made  to  confirm  the  same, 
it  was  resisted  on  the  jiart  of  the  defendant,  on  grounds  set  forth  in  an 
affidavit  made  by  two  of  the  commissioners,  and  an  affidavit  made  by 
himself.  The  commissioners  stated  that,  in  fixing  the  value,  they  re- 
ferred to  the  death  of  the  husband,  and  that  they  did  not  ascertain  how 
much  was  held  by  the  defendant.  In  the  affidavit  made  by  himself,  he 
stated  that  he  had  no  notice  of  the  valuation  by  the  commissioners,  with 
a  view  to  assess  the  dower  ;  and  that  the  alienation  was  long  previous  to 
the  death  of  the  husband.  On  these  affidavits  the  defendant  moved  to 
set  aside  the  return,  and  to  recommit  the  matter  with  instructions. 

I  considered  that  it  would  be  of  mischievous  tendency  to  avoid  the 
official  act  of  the  whole  number  of  commissioners,  under  the  sanction  of 
an  oath,  u])on  the  voluntary  and  exparte  statement  of  two  of  them,  or 
upon  the  affidavit  of  the  defendant,  that  he  had  no  notice,  which  did  not 
seem  to  be  indispensable,  if  the  commissioners  had  other  satisfactory 
information. 

The  motion  of  the  demandant  to  confirm  the  return  was  allowed.  The 
defendant  moves  to  set  aside  the  order. 

*321  *'^^^^  defendant  appeals,  and  will  move  to  reverse  the  decision  made 
■1  on  the  circuit,  on  the  followhig  ground  : 
Because  the  affidavits  subjnitted  by  him,  which  remained  wholly  uncontro- 
verted,  after  due  notice  to  the  plaintiff's  attorney,  showed  that  the  commis- 
sioners liad  proceeded  without  notice  to  the  defendant,  without  knowledge  of 
the  time  of  alienation,  witliout  ascertaining  the  quantity  of  land,  and  without 
reference  to  the  value  at  the  time  of  alienation. 

.  AffidnvUs. — We,  Samuel  Cowan  and  Williams  Truwit,  two  of  the  commis- 
sioners in  this  case,  swear,  tliat  in  valuing  the  land  in  question,  we  had  no 
papers— we  knew  the  quantity  only  by  the  representation  of  Mr.  Palmer, 
phiintill's  fatiier:  how  much  tlie  defendant  held,  we  did  not  ascertain;  and  we 
referred  to  the  death  of  James  lieatty,  the  only  date  we  were  informed  of,  iu 
fixing  the  value. 

Samdel  Cowan, 
William  Truwit. 
Sworn  to  before  J.  H.  Wilsox,  J.  Q.,  Oct.  ICth,  1839. 


*32]  BEATY  VS.  HEARST.  21 

I,  John  Hearst,  the  defendant,  being  duly  sworn,  say,  that  I  had  no  notice 
of  the  valuation  of  the  land  by  the  Commissioners,  with  a  view  to  assess  the 
dower;  that  the  alienation  was  long  previous  to  the  death  of  James  Beatty, 
the  husband  of  the  demandant;  and  that  the  amount  or  value  of  the  land,  as 
assessed  by  the  commissioners,  far  exceeds  the  amount  given  for  the  land  at 
any  time  within  the  knowledge  of  this  defendant. 

JnO;  Hearst,  Jr. 
Sworn  to  this,  the  17th  October,  1839,  before  \ 
Tugs.  C.  Perrin,  Not.  Pub.  |    . 

Curia,  joer  Earle,  J.  The  commissioners  appointed  to  execute  the 
writ,  act  under  the  authority  of  the  Court,  and  the  s  nction  of  an  oath. 
lu  this  case,  they  all  united  in  the  execution  of  the  power  confided  to 
them,  and  in  the  most  formal  manner  have  made  their  joint  return,  setting 
forth  the  mode  in  which  they  have  performed  their  duty.  They  state, 
distinctly,  the  fact  that  they  went  upon  the  land,  and  appraised  its  value 
at  the  time  of  the  alienation  by  the  husband  ;  and  the  question  is,  shall 
the  Circuit  Court  refuse  to  coufirm  that  return,  on  the  affidavit  of  two 
only,  out  of  the  five  commissioners,  *that  in  valuing  the  land,  they  r^o^ 
referred  to  the  death  of  the  husband,  and  not  to  the  time  of  alien-  L 
ation  ;  and  the  affidavit  of  the  plaintiff,  that  he  had  no  notice.  It  r.eems 
to  be  rather  a  question  of  practice  or  discretion,  than  of  principle.  There 
is  no  doubt  that  a  Circuit  Judge  may  withhold  confirmation  of  such  a 
return,  either  in  dower,  partition,  or  in  any  other  proceeding,  and  allow 
further  time,  on  such  showing  as  satisfies  him  that  there  has  l)oen  error 
or  mistake,  or  any  departure  from  established  legal  rules.  To  confirm 
or  to  withhold  confirmation  for  a  term, (a)  becomes  then  a  matter  of  dis- 
cretion, to  be  exercised  so  as  not  to  delay  one  whose  right  is  clear,  on 
the  one  hand,  and  not  to  sanction  error  and  do  injustice  by  precipitation, 
on  the  other.  In  this  case,  the  return  was  perfect ;  the  mode  of  pro- 
ceeding was  exactly  conformable  to  legal  rules  ;  and  was  verified  by  the 
oath  of  all  the  commissioners.  This,  to  say  the  least,  is  entitled  to  full 
credit,  rather  than  the  exparte  affidavit  of  two  of  them.  Had  these  last 
entered  into  any  explanations  of  the  mode  and  grounds  of  proceeding,  so 
as  to  show  that  the  commissioners  were  mistaken  in  point  of  fact  or  law  ; 
or,  had  a  majority  of  them  come  forward,  and  presented  the  same  ground, 
and  suggested  to  have  the  subject  recommitted,  to  correct  errors  ;  or, 
had  the  defendant,  on  the  filing  of  the  return,  taken  a  rule  to  show  cause, 
or  given  notice  of  his  motion  to  the  other  commissioners,  then,  in  the 
absence  of  any  sufficient  explanation,  the  confirmation  of  the  return  might 
properly  have  been  witheld,  or  the  return  set  aside,  and  the  subject 
recommitted.  But  the  single  fact  stated  in  the  affidavit  of  the  two  com- 
missioners, is  in  direct  conflict  with  their  return.  They  have,  in  fact, 
sworn  both  ways ;  and  I  do  not  perceive  that  such  a  case  was  made  out 
as  to  require  that  the  Circuit  Judge  should  have  set  aside  the  return,  or 
withheld  the  confirmation.  And  I  think  that  this  is  the  more  obvious 
from  the  fact  that  the  defendant,  in  his  affidavit,  does  not  swear  that  the 
valuation  is  too  high,  or  that  any  injustice  is  done  to  him.  In  the  opinion 
of  a  majority  of  the  court,  it  was  a  question  addressed  rather  to  the 

(a)  Discretion  of  the  Judge.  See  7  Rich.  53.5.  2  Rich.  7S.  Post.  159,  191,  339. 
4  Rich.  4t3(j.  10  Rich.  141.  9  Rich.  133,  454.  S  Rich.  451.  Harp.  4u0.  2  Sp. 
167,  2(35.     5  Strob.  87..    3  Strob.  432.     Rice,  298,  &c.,  &c.     An. 


22  COLUMBIA,    DECEMBER,    1840,      VOL.  I.  [*33 

discretion  of  the  Judge  ;  and  as  the  return  was  unexceptionable  on  its 
face,  it  was  for  him  to  be  satisfied  with  the  evidence  aliunde  to  impugn  it. 
And  although  they  might  have  come  to  a  different  conclusion,  and 
decided  differently  they  do  not  feel  at  liberty  to  interfere  with  his  judg- 
.o<-i  meut.  We  are  all  *agreed  that  the  want  of  notice  was  no  ground 
^  -I  to  oppose  the  confirmation  of  the  return.  The  summons  and  the 
writ  described  the  land  on  which  dower  was  to  be  admeasured  or 
assessed,  and  the  verdict  had  found  that  the  defendant  was  in  possession. 
Nothing  more  was  needed. 

Motion  refused':  the  whole  court  concurring. 

Wardhnc  and  Perrin,  for  the  motion.     Burt  and  Thompson,  contra. 


Alexander  McCarley,  Executor,  vs.  W.  G.  Davis,  J.  S.  Osborne, 
and  Wm.  Yance. 

A  Prison  Bounds'  Bond  becomes  forfeited,  against  all  the  parties  to  it  when  the 

principal  forfeits  his  rights  to  the  benefits  of  the  law  under  which  it  was  taken ; 

and  the  liability  of  the  securities  is  fixed,  as  soon  as  the  plaintiflF  acquires  his 

right  to  the  bond  by  assignment. 
The  amount  of  recovery  is  the  amount  of  the  debt  on  which  the  defendant  was 

confined. 

Before  Butler,  J.,  at  Laurens,  Fall  Term,  1840. 

This  was  an  action  of  debt  on  prison  bounds'  bond.  The  common 
breaches  were  assigned,  and  the  defendants,  Osborne  and  Yance  pleaded  to 
the  declaration — first,  a  special  plea  to  this  effect,  that  after  the  execution 
of  the  bond,  and  before  its  assignment  to  plaintiff,  Davis,  the  principal 
to  the  bond,  had  been  remanded  to  jail  by  the  plaintiff,  which  Avas  a  dis- 
charge of  his  securities.  To  this  plea,  there  was  a  general  demurrer, 
which  I  sustained,  holding  that  the  plaintiff  had  no  control  over  Davis, 
until  after  the  finding  of  a  jury,  that  his  schedule  was  fraudulent,  or  that 
he  had  gone  beyond  the  bounds  ;  and  that  after  such  finding,  Davis  was 
properly  committed,  and  that  his  sureties  could  not  be  discharged 
;^oc-|  thereby.  The  second  *plea  was  performance,  upon  whicli  plaintiff 
-^  took  issue.  Bond  and  assignment  admitted,  the  first  dated  7th 
February,  1839,  and  the  other  29th  June,  1839.  The  plaintiff  then 
offered  the  following  evidence  :  Yerdicit  of  special  jury  on  a  suggestion 
of  fraud,  tried  before  the  Commissioner  of  Special  Bail,  under  the  Act 
of  the  Legislature  of  1833 — "  We  find  the  schedule  is  fraudulent,  on  the 
ground  that  Davis  has  not  included  in  his  schedule  his  interest  in  Missis- 
sippi, in  the  concern  of  Davis  &  Hill  "  From  this  verdict  there  was  an 
appeal,  which  was  confirmed  by  tlie  Court  of  Appeals.  The  last  piece 
of  evidence  introduced  by  plaintiff",  was  the  ca.  sa.  under  which  Davis 
had  been  conlinetl,  and  tlie  amount  of  the  recovery  endorsed  thereon,  to 
wit  :  $9o3  3t,  with  interest  from  the  1st  of  November,  1838. 

The  dcfcudanls  contended  that  the  verdict  against  Davis  was  not 
conclusive  against  them,  and  they  offered  to  go  into  evidence  to  show, 
1st,  that  Davis  had  included  in  his  schedule  all  his  property,  and  to  show 
that  he  had  ins(,Tted  in  it  all  his  interest  in  the  Mississippi  concern.  2d. 
That  if  any  thing  was  omitted,  to  show  the  value  of  it,  with  a  view  of 


*35] 


m'CARLET,  Ex'oR,  vs.  DAVIS,  ET  AL.  23 


reducing  tbe  damages.  3rd.  To  show  that  some  of  the  jury  who  tried 
the  question  of  fraud  before  the  special  jury,  would  swear  tliat  they  did 
not  notice  or  take  into  their  consideration  that  part  of  Davis'  assignment 
which  refers  to  or  concerns  the  Mississippi  partnership. 

I  refused  to  receive  any  of  the  evidence  that  was  offered,  holding  that 
defendant's  liability  was  conclusively  fixed  by  the  finding  of  the  jury — 
that  as  soon  as  it  was  ascertained  that  Davis  had  forfeited  his  right  to 
the  prison  bounds,  or  to  be  discharged,  all  the  parties  to  his  bond  became 
bound  for  the  amount  of  the  recovery  against  him  ;  and  that  that  amount 
could  not  be  reduced,  by  showing  the  amount  of  the  property  omitted 
from  the  schedule. 

The  plaintiff  accordingly  took  his  verdict  for  the  amount  of  the  judg- 
ment against  him,  upon  which  the  ca.  sa.  had  issued — which  was  the 
sum  of  $953  34,  with  interest,  &c. 

From  this  decision  the  defendants  appeal,  on  the  annexed  grounds  : 
*1.  Because  the  finding  of  the  special  jury  on  the  schedule  of  Davis,  was  poe 
not  conclusive  against  the  defendants,  his  sureties  to  the  bond.  L 

2.  Because  it  was  competent  for  the  defendant  to  show  the  value  of  the 
property  omitted  in  the  schedule,  with  a  view  of  reducing  the  recovery. 

Curia  2^cr  Butler,  J.  The  grounds  taken  in  the  appeal  resolve 
themselves  into  this  proposition — have  the  securities  on  a  prison  bounds' 
bond  the  right  to  question  the  finding  of  the  jury  against  their  principal, 
establishing  the  fact  that  he  had  forfeited  his  right  to  the  jail  rules  or 
bounds,  under  the  prison  bounds'  Act,  by  rendering  a  false  and  fraudulent 
schedule  ?  Or,  in  other  words,  whether  the  bond  becomes  forfeited 
against  all  the  parties  to  it,  when  the  principal  forfeits  his  rights  to  the 
benefit  of  the  law  under  which  it  was  taken.  The  securities  undertake, 
by  the  bond,  that  their  principal  will  remain  within  the  prison  bounds, 
and  that  he  will,  within  forty  days,  render  in  to  the  Clerk  of  the  Court  a 
true  and  honest  schedule  of  his  effects  ;  otherwise  that  they  will  pay  the 
debt  on  which  the  principal  has  been  confined,  (a) 

By  the  7th  clause  of  the  Act  it  is  provided,  "  that  any  prisoner  com- 
mitted on  execution  aforesaid,  who  shall  not  give  in  such  schedule,  (that 
is,  a  true  schedule,)  agreeably  to  the  tenor  of  his  or  her  bond,  shall  not 
be  any  longer  entitled  to  the  prison  rules,  but  his  bond  shall  be  forfeited 
and  assigned  to  the  plaintiff',''  &c.  And  in  the  latter  part  of  the  same 
clause,  it  is  provided  how  the  forfeiture  shall  be  ascertained,  to  wit  :  by 
a  jury,  &c.  When,  therefore,  the  securities  signed  the  bond,  they  were 
not  only  well  aware  of  the  nature  and  extent  of  their  obligation,  but  of 
the  manner  in  which  their  liability  was  to  be  fixed,  to  wit :  by  a  decision 
against  their  principal.  This  decision  must  form  a  part  of  the  contract ; 
for,  upon  such  decision,  the  plaintiff  acquires  his  riglit  to  the  bond,  by 
an  assignment  from  the  Sheriff;  the  very  object  of  such  assiirnment  being 
to  enable  the  plaintiff  to  recover  against  all  the  parties.  The  plaintiff's 
right  to  the  bond,  and  the  defendant's  liability  to  pay  it,  would  seem  to 
be  coextensive;  and  that  one  is  established  as  soon  as  the  other  is 
lawfully  acquired.  According  to  these  views,  the  liability  of  the  de- 
fendants was  conclusively  fixed  by  the  finding  of  the  jui^  against  Davis. 
The   right   of  recovery   being   estaldished,    the   extent   of  it  followed 

(a)  5  Stat.  78.     An. 


24  COLUMBIA,    DECEMBER,    1840.      VOL.  I.  [*37 

^o-T  *\vliich  was  the  amount  of  the  debt  on  which  Davis  had  been  con- 
^'■^  fined.     The  opinion   of  the  Court,  therefore,   is  that  the  decision 
below  was,  in  every  respect,  correct  and  it  is  afSrmed. 
The  motion  of  defendants  is  therefore  dismissed. 
Richardson,  O'Xeall,  Evans,  Earle,  JJ.,  concurred :  Gantt,  J., 
absent. 

Young  and  Irhy,  for  the  motion.     Sullivan,  contra. 

See  Barley  v.  Nelson,  2  Strob.  169.     10  Rich.  80.     An. 


Joseph  Pearson  vs.  James  B.  Davis. 

In  case  of  eviction,  by  title  paramount,  tbe  measure  of  damages  is  the  price  paid 

for  the  land,  with  interest. 
Consequential  damages  cannot  be  recovered  for  any  inconvenience  or  loss  which 

the  vendee  may  sustain  iu  his  improvements,  however  expensive  or  permanent. 

{The  case  of  Henniny,  Executor,  v.  Withers,  (3  Brev.   Rep.   458,)   considered  and 

confirmed.) 

Before  Earle,  J.,  at  Fairfield,  Fall  Term,  1840. 

Assumpsit  on  a  note  of  hand,  given  for  the  purchase  money  of  a  tract 
of  land,  conveyed  by  the  plaintiff  to  the  defendant. 

The  defendant,  by  suit  at  law,  had  been  evicted,  by  title  paramount, 
of  twelve  acres,  lying  about  the  middle  of  the  tract,  and  running  in  a 
narrow  slip,  nearly  through  it ;  the  defendant,  by  way  of  discount 
claimed  an  abatement,  not  only  for  the  actual  value  of  the  land  thus 
recovered  from  him,  in  proportion  to  the  price  given  for  the  whole,  but 
additional  damages  for  the  injury  and  inconvenience  which  the  person  in 
possession  must  suffer. 

I  overruled  this  latter  claim,  and  instructed  the  jury  to  allow  an 
abatement  pro  tanto,  for  the  actual  value  of  the  land,  who  found 
accordingly. 

*38]  *GROUNDS    OF    APPEAL. 

1.  That  the  presiding  Judge  erred  in  charging  the  jury,  that  they  could  not 
allow  the  defendant  any  discount  beyond  the  value  of  the"  deficient  laud. 

2.  Because  the  verdict  was  contrary  to  law  and  evidence. 

Curia,  per  Bakl-e,  J.  The  Act  of  1824,  (a)  provides  that  in  cases, 
"  the  true  measure  of  damages  shall  be  the  amount  of  purchase  money, 
at  the  time  of  alienation,  .  with  legal  interest."  Such  has  been  the 
settled  rule  at  law,  since  the  case  Furman  vs.  Elmore.{b)  The  defendant, 
under  liis  discount,  has  under  that  rule,  been  allowed  damages,  propor- 
tioned to  the  actual  value  of  the  land  recovered  from  him.  Independ- 
entlyof  the  Act,  and  the  previous  settled  rule,  it  would  be  difficult  to 
sustain,  on  any  principle,  or  by  any  argument,  the  proposition,  that 
damages  could  be  recovered  for  the  inconvenience  complained  of,  as 
resulting  from  the  loss,  in  addition  to  the  value  of  the  land.  The 
standard  of  daniagcs  should  not  only  be  uniform,  l)ut  such  as  to  enable 
it  to  be  applied  to  every  case  of  eviction,  by  title  paramount.     There 

(a)  4  Stat.  238.     An.  (i)  2  N.  &  McC.  189.     An. 

f^ce  1  Hay.  18,  92,  205.  3  Bus.  2  Tread.  584.  1  McC.  384,  466.  2  McC. 
413.     Chir.  128.     An.  ' 


*38J  PEARSON  VS.  DAVIS.       STATE  VS.  BELCHER.  25 

is  no  reason  why  the  rule  for  assessing  damages,  where  the  land 
recovered  lies  in  one  part  of  the  tract  conveyed,  should  be  ditferent  from 
what  it  would  be  if  the  land  lay  in  another  place.  Indeed,  it  is  a  con- 
clusive answer  to  the  proposition,  to  say,  that  there  can  be  no  standard, 
or  rule,  for  assessing  damages,  for  the  inconvenience  here  complained  of. 
They  are  altogether  speculative  and  uncertain.  If  it  should  suit  the 
interest  of  the  vendee  to  sell  the  remainder  of  the  tract  in  two  parcels, 
tlien  there  is  no  damage  at  all.  If  he  cultivates  on  one  side  only,  the 
inconvenience  is  trifling  ;  if  on  both  sides,  it  is  greater.  If  a  person 
were  to  purchase  a  tract  of  land  adjoining  one  whereon  he  resided,  and 
should  be  evicted  from  a  portion  of  his  purchase,  nearest  his  residence, 
be  too  might  claim  additional  consequential  damages,  to  a  greater 
amount  than  if  the  loss  accrued  on  the  side  of  the  tract  most  remote  ; 
and  in  every  case,  the  assessment  would  depend  on  the  accidental  cir- 
cumstances of  residence  and  cultivation.  It  is  well  settled,  that  a  vendee 
cannot  recover  for  actual  improvements,  however  expensive  or  permanent ; 
and  for  a  much  stronger  reason,  he  should  not  be  allowed  to  recover  for 
a  mere  inconvenience,  arising  from  a  change  in  the  shape  of  his  tract,  or 
the  *relative  position  of  his  fields.  This  question  was  settled  in  r-:j-oq 
the  case  of  Henning  vs.  Withers,  (3  Brev.  Kep.  458)  which  was  •- 
very  well  considered.  The  defendant  purchased  a  tract  of  land,  with  a 
stream  of  water  running  through  it,  on  which,  but  lower  down,  and  with- 
out the  boundaries  of  the  tract,  he  built  a  saw  mill.  He  was  evicted  by 
title  paramount,  of  a  narrow  strip  of  the  land,  on  the  side  nearest  the 
mill,  and  extending  across  the  stream  ;  in  consequence  of  which,  he  was 
obliged  to  lessen  the  height  of  his  dam,  and  of  course  the  quantity  of 
water  in  his  pond  ;  whereby  the  profits  of  his  saw  mill  were  greatly 
diminished.  Being  sued  on  the  bond  for  the  purchase  money,  he  claimed 
by  way  of  discount,  not  only  an  abatement  for  the  actual  value  of  land, 
but  for  the  consequential  damage,  resulting  from  the  loss,  in  its  effect 
upon  the  profits  of  the  mill.  But  it  was  held,  the  whole  Court  concur- 
ring, that  he  was  entitled  only  to  an  abatement  for  the  value  of  the  land. 

The  motion  is  refused  :  the  whole  court  concurring. 

Woodward,  for  the  motion.  Fair,  contra, 


*The  State  vs.  W.  H.  Belcher.  [*40 

Books  M^ere  sent  up  from  Charleston  to  Columbia,  and  consigned  to  rdock, 
Solomon  &  Co.,  merchants  and  auctioneers  in  Columbia,  by  whom  the  freight 
from  Charleston  was  paid,  and  sold  by  them,  and  the  defendant,  at  auction  and 
at  private  sale,  for  the  use  and  benefit  of  the  defendant :  Held,  not  to  come 
within  the  i>urview  of  the  Act  of  Assembly  for  hawking  and  pedling. 

A  hawker  and  pedlar  is  one  who  travels  from  town  to  town,  or  from  plantation 
to  plantation,  carrying  to  sell,  or  exposing  to  sale,  goods,  wares,  and  merchan- 
dize ;  but  a  single  shipment  of  goods,  regularly  consigned  to  Polock,  Solomon 
&  Co..  by  the  defendant,  and  sold  by  himself  or  them,  for  his  use  and  benefit, 
is  not  hawking  and  pedling  -nithin  the  meaning  of  the  Act. 

The  defendant  a  non-resident  of  this  State,  did  sell  goods,  wares,  and  merchandize 
in  a  house  in  the  town  of  Columbia,  and  is  therefore,  when  properly  indicted  and 
convicted,  liable  to  the  penalties  of  the  Act  of  Assembly  of  1835 — page  6. 
(^Per  O'Neall,  J. 


26  COLUMBIA,   DECEMBER,    1840.      VOL.  I.  [*40 

Before  Evans,  J.,  at  Richland,  Fall  Term,  1840. 

The  defendant  was  indicted,  under  the  Act  of  Assembly,  for  hawking 
and  pedling  in  books.  The  evidence  in  substance  was  that  the  defend- 
ant was  a  transient  person.  The  books  were  sent  up  from  Charleston, 
consigned  to  Polock,  Solomon  &  Co.,  merchants  and  auctioneers  in 
Columbia,  by  whom  the  freight  from  Charleston  was  paid.  A  short 
time  before  the  28th  November,  1838,  the  defendant  came  to  Columbia, 
and  arrangements  were  made  for  the  sale  of  the  books  at  night,  by 
auction,  and  in  the  day  by  private  sale.  A  room  was  hired  for  the 
purpose.  Hand  bills  were  printed,  giving  notice  of  the  auction  by 
Polock  &  Solomon.  The  sales  were  opened  by  Polock,  but  he  gave 
place  as  crier  to  the  defendant,  who  was  very  expert  as  an  auctioneer. 
The  account  of  sales  was  kept  by  a  clerk  of  Polock  &  Solomon.  In  the 
day  time,  the  defendant  sold  books  at  private  sale,  but  one  of  Polock  & 
Solomon's  clerks  usually  attended  in  the  store.  The  sales  continued 
three  days  and  nights.  The  books  unsold  were  subsequently  packed  up 
and  sent  to  Charleston.  Those  that  were  remaining  on  hand,  if  any,  on 
the  first  of  January,  were  returned  to  the  tax  collector  as  part  of  the 
stock  in  trade  of  Polock,  Solomon  &  Co.  The  money  for  the  books 
sold,  was  sometimes  to  them  and  sometimes  to  the  defendant.  These 
facts  were  proved  by  Polock  and  Levy,  two  of  the  partners  ;  they  also 
*1T1  P''0'^^"ced  their  books,  *showing  an  aggregate  of  sales  at  auction,  of 
-^  $"^,5T"2,  and  §350,  at  private  sale.  From  these  amounts  was  de- 
ducted, the  freight,  house  rent,  5  per  cent,  commissions  on  the  sales  at 
auction,  and  1  per  cent,  on  the  private  sales.  And  for  the  balance  they 
said  they  had  accounted  to  the  defendant. 

It  was  proved  by  Cunningham  that  he  purchased  books  and  stationery 
to  an  amount  exceeding  $100,  part  at  auction  and  part  at  private  sale, 
and  produced  the  receipted  bill  signed  by  Belcher,  to  whom  he  paid  the 
money.  He  also  said  Belcher  told  him  he  had  sold  to  the  amount  of 
$'J000,  nearly  half  of  which  was  at  private  sale. 

I  defined  a  hawker  and  pedlar  to  be  an  itinerant  trader  who  carries 
goods,  &c.,  through  the  streets,  from  town  to  town,  and  from  place  to 
place.  It  was  the  itinerancy  of  his  employment  which  gave  character  to 
it,  and  not  the  mode  in  which  he  carried  his  goods,  or  the  place  where 
his  wares  were  exposed  to  sale.  I  charged  the  jury  as  follows,  viz  :  1. 
Tliat  it  was  a  usual  and  common  course  of  business  to  consign  goods  to 
an  auctioneer  or  agent,  to  be  sold  for  and  on  account  of  the  owner. 
Such  i^'dk?,  if  honafi'Ie,  wore  the  sales  of  the  agent ;  and  it  could  and  did 
make  no  diiTerence  whether  the  owner  was  present  assisting  at  the  sales 
or  not.  If,  therefore,  the  account  of  these  sales,  as  given  by  the 
auctioneers,  was  the  true  one,  then  I  thought  the  defendant  ought  to  be 
acquitted.  '2d.  But  if  the  employment  of  Polock,  Solomon  &  Co.,  was 
merely  pretensive,  and  Belcher  was  the  vendor  of  the  goods  under  color 
of  their  name;  or  if,  over  and  above  the  amount  sold  by  them,  he 
cITocteil  other  sales  himself,  independent  of  their  agency,  then  the  jury 
miglit  convict  him. 

The  defendant  was  convicted. 

GROUNDS    OF   APPEAL. 

1.  Because  there  was  no  evidence  to  sustain  the  charge  laid  in  the  indict- 
Dieat. 


*41] 


STATE  VS.  BELCHER.  27 


2.  There  was  no  proof  that  defendant  was  a  hawker  and  pedlar  within  the 
meaning  of  the  Act  of  1835,  increasing  the  price  of  license,  under  which  he  was 
indicted. 

3.  There  was  uncontroverted  evidence  that  the  goads  were  regularly  con- 
signed to  Polock,  Solomon  &  Co.;  that  they  made  the  sales,  and  received  r^^..^ 
their  usual  commissions  of*  5  per  cent,  on  auction  sales  and  1  per  cent  L  "' 
on  private  sales. 

4.  The  jury  probably  misapprehended  the  extent  of  the  charge  by  the  Court, 
that  if  defendant  employed  Polock,  Solomon  &  Co.  with  a  view  to  invade  the 
law  against  hawkers  and  pedlars,  he  would  be  liable. 

5.  Because  the  Court  charged  that  if  Belcher  sold  more  goods  than  he  paid 
commission^  for  to  Polock,  he  would  be  liable  under  the  Act. 

Curia,  per  O'Neall,  J,  This  case,  it  seems  to  me,  turns  upon  tlie 
question,  whether  the  defendant  is,  oris  not,  a  hawker  and  pedlar,  withia 
the  Acts  of  this  State  ?  This  question  will  be  answered  by  ascertaining, 
first,  from  our  Acts,  who  is  a  hawker  and  pedlar  ;  and  secondly,  whether, 
from  the  facts  proved,  that  character  is  fixed  upon  the  defendant  ? 

To  answer  the  first  question,  we  are  obliged  to  go  back  to  the  old  Act 
of  1737,  P.  L.,  152.  Its  preamble  and  enactment  both  point  to  "per- 
sons who  travel  from  town  to  town,  from  one  plantation  to  another,  by 
land  or  by  water,  carrying  to  sell  or  exposing  to  sale,  any  rum,  sugar,  or 
other  goods,  wares  or  merchandizes,"  as  those  designated  by  the,  general 
terms,  "  Hawkers  and  Pedlars."  All  the  subsequent  Acts,  (Act  of  1797, 
2  Faust,  151  ;  Acts  of  1825,  p.  60  ;  Acts  of  1831,  p.  40  ;  Acts  of  1835, 
p,  45,)  speak  of  "  Hawkers  and  pedlars,"  as  known  legal  terms,  and  do 
not  extend  their  meaning.  Taking  then  the  true  meaning  to  be  that 
pointed  out  by  the  Act  of  1737,  it  is  impossible  that  the  defendant,  in 
any  point  of  view,  can  be  regarded  as  a  "  Hawker  and  Pedlar."  He  is 
not  one  who  travels  from  town  to  town,  or  from  one  plantation  to 
another,  carrying  to  sell,  or  exposing  to  sale,  goods,  wares  and  mer- 
chandizes. This  is  a  single  shipment  of  goods  regularly  consigned  to 
Polock,  Solomon  &  Co.,  and  by  them,  or  by  himself,  sold  at  auction  or 
private  sale,  for  his  use.  This  is  any  thing  else  than  hawking  and  pedling. 
It  is  just  such  a  sale  of  goods  as  is  constantly  effected  in  every  city  ia 
the  union ;  and,  I  presume,  that  it  never  entered  into  the  head  of  any  one 
that  such  a  sale  was  an  act  of  hawking  and  pedling.  In  construing  a 
highly  penal  statute,  we  should  be  bound  to  give  it  such  a  construction 
as  would  prevent  persons  not  clearly  embraced  by  its  words  from  being 
held  amenable  to  its  provisions.  If  the  statute  did  not  define  hawkers 
and  pedlars,  *we  should  then  have  to  ascertain  what  was  the  usual  r^jtiq 
popular  meaning  of  those  words.  That  would  give  the  definition  L 
given  by  the  Judge  below,  and  which  is  in  substance  the  same  by  the 
Act.  Taking  it,  and  defining  a  hawker  and  pedlar  to  be  "  an  itinerant 
trader  who  carries  goods,  &c.,  through  the  streets,  from  town  to  town, 
and  from  place  to  place,"  no  one,  it  seems  to  me,  could  suppose  that  any 
thing  short  of  a  sale  of  goods  by  the  retail  in  this  itinerant  way,  would 
constitute  one  a  hawker  and  pedlar.  It  is,  however,  unnecessary  to 
pursue  this  reasoning  any  further,  as  the  11th  section  of  the  Act  to 
raise  supplies  for  the  year  1835,  (Acts  of  '35  p.  6,)  (c)  most  plainly  pro- 

(rt)  3  Stat.  4S7.  An.         (&)  5  Stat.  308.  6  Stat.  265.  Id.  433.  Id.  529.  An. 
(c)  6  Stat.  543.  An. 


28  COLUMBIA,   DECEMBER,    1840.      VOL.  I.  [*43 

Tides  for  the  case  of  the  defendant,  and  he  cannot,  therefore,  be  held 
liable  to  the  greater  penalties  of  the  Acts  against  hawking  and  pedling. 
It  provides,  ""  If  any  transient  person  or  persons,  not  resident  in  this 
State,  shall  at  any  time  sell,  or  expose  for  sale,  any  goods,  wares,  or 
merchandize  whatever,  in  any  honse,  stall  or  pnblic  place,  after  the  first 
day  of  January,  in  each  year,  such  person  shall  make  return,  on  oath, 
within  ten  days  after  commencing  to  sell  as  aforesaid,  of  the  whole 
amount  of  the  stock  in  trade  he  may  have  possessed  at  that  time,  to  the 
tax  collector  of  the  district  or  parish  in  which  the  said  goods,  wares,  or 
merchandize  shall  have  been  or  may  be  sold  or  exposed  to  sal,e.  And  if 
any  person  shall  neglect  or  refuse  to  make  such  return  as  aforesaid, 
within  the  time  prescril)ed  above,  he  shall,  on  conviction  thereof  by  indict- 
ment forfeit  and  pay  the  sura  of  not  more  than  $1000  ;  unless  such  person 
shall  have  ])aid  for  and  procured  a  license  according  to  the  provisions  of  an 
Act  entitled  "  An  Act  to  increase  the  price  of  license  to  hawkers  and 
pedlars  "  The  defendant,  a  person  not  resident  in  this  State,  did,  within 
the  words  of  this  Act,  sell  goods,  wares  and  merchandize  in  a  house  in 
the  town  of  Columbia,  and  is  therefore,  when  properly  indicted  and  con- 
victed, liable  to  its  penalty.  The  exception  with  which  the  section 
closes  in  favor  of  hawkers  and  pedlars,  does  not  make  all  persons  not 
resident  in  this  State,  and  selling  or  exposing  for  sale,  any  goods,  wares, 
or  merchandize,  in  any  house  stall,  or  public  place,  necessarily  hawkers 
and  pedlars.  It  was  intended  to  save  such  hawkers  and  pedlars  who  had 
taken  out  the  license,  and  might  sell  or  expose  to  sale  in  a  house,  stall  or 
public  place,  their  merchandize,  from  being  liable  to  this  general  pro- 
vision. 
*44]     *The  motion  for  a  new  trial  is  granted. 

KiciiARDsoN,  Earle,  Butler,  JJ.,  concurred:  Evans,  J.,  absent,  but 
concurs  :  Gantt,  J.,  absent. 

W.  F  Be  Saussure,  for  the  motion.     Mr.  Solicitor  Edicards,  contra. 


The  State  vs.  David  Mobley. 

All  roads  laid  out  by  public  wdhoriUj  must  bo  regarded  as  public  roads,  in  the 

ol)strui;tion  of  which  a  nuisance  may  be  committed. 
A  road  laid  cmt   by  order  of.  the   County  Court  of  Chester  district  is  a  public 

road,  unless  discontinued    by  order  of  the  commissioner  of  roads,  or  become 

extinct  from  lonj,'  neglect  or  non  user. 

Jkfore  O'Xeall,  J.,  at  Chester,  Fall  Terra,  1839, 

The  defendant  was  indicted  for  obstructing  a  road  leading  from  the 
plantation  of  Wm.  L.  Wallis,  on  the  York  road,  to  the  mill  of  Cliarles 
AValker,  deceased,  in  Chester  district.  The  proof  very  clearly  estab- 
lished an  oljstrnction  of  the  road  by  the  defendant. 

The  County  Court  of  Chester,  on  the  31st  of  July.  1198,  ordered  the 
road  to  be  laid  out  I)y  the  following  order  :  "  On  petition,  ordered,  that 
n  Irarrlliiui  road  be  laid  out  and  cleared  from  Thomas  Wallace's  to 
Robert  Owen's  grist  mill,  to  be  laid  out  at  the  direction  of  Thomas 


*44] 


STATE  VS.  MOLBEY.  29 


Wallace  and  William  Monalian,  the  nearest  and  best  way,  so  as  not  to 
interfere  with  the  enclosure  of  any  person  whatsoever,  and  to  be  cleared 
and  kept  in  repair  by  the  persons  who  live  contij^nous  thereto,  and  have 
the  benefit  thereof;  also,  a  rad  from  the  mill  to  intersect  the  Charleston 
road  near  the  lower  corner  of  Thos.  Cabeeu's  field,  and  thence  into  Fish- 
dam  road  above  William  Murray's  on  the  same  conditions  and  premises 
as  the  above,  at  the  direction  of  James  Yants." 

*Under  this  order,  the  road  was  opened  and  laid  out.  It  has  r-^  .  r 
been  an  open  road  since  '98  :  some  persons  voluntary  worked  on  it ;  L 
the  commissioners  never  kept  it  in  repair.  It  was  still,  however,  used 
by  the  neighborhood.  It  was  changed  by  many  persons  through  whose 
land  it  ran,  as  suited  their  convenience.  Owen's  mill  was  ten  or  twelve 
years  out  of  repair  ;  it  was  then  repaired  by  Charles  Walker,  who  had 
bought  it. 

I  submitted  to  the  jury  the  inquiry — is  this  a  public  road  ?  I  said  to 
the  jury  that  that  which  is  for  |)rivate  use  cannot  be  regarded  as  public. 
A  road  to  a  church  or  a  mill,  and  there  terminating,  would  not,  in 
general,  be  a  public  road.  On  this  part  of  the  subject,  I  said  to  them, 
there  was  a  great  difference  between  our  condition  and  that  in  England, 
whence  our  common  law  was  derived.  That  I  thought  it  possible  here 
that  a  road  to  a  mill  might  be  a  public  one  ;  as  when  it  was  used  by  the 
people  at  large,  and  where  it  led  from  a  public  road  to  the  mill  and  thence 
into  another  public  road,  and  became  a  public  thoroughfare.  I  did  not 
say  to  the  jury,  as  the  defendant's  ground  of  appeal  suppose,  "  that  the 
English  common  law,  in  relation  to  roads,  was  not  applicable  to  roads  in 
this  State." 

I  said  further  to  the  jury,  that  a  road  from  village  to  village,  or  from 
one  public  road  to  another,  might  or  might  not  be,  a  public  one.  A 
road  kept  in  repair  by  the  commissioners  of  roads,  is  a  public  road  It 
might,  however,  be  that  a  road  not  kept  in  repair  by  the  commissioners, 
was  a  public  road.  As  where  a  road  is  laid  out  by  public  authority  for 
the  use  of  the  people.  If  such  a  road  be  discontinued  by  the  com- 
missioners, then  it  may  end  its  piiblic  character.  So,  too,  where  they  do 
no  act  disclaiming  the  road,  yet  it  might  be  disused  for  such  a  length  of 
time  as  would  satisfy  them  that  it  had  ceased  to  be  public. 

Frequent  changes  of  a  road,  unless  they  amount  to  an  abandonment, 
could  not  affect  its  public  character. 

With  these  instructions,  the  case  went  to  the  jury,  who  found  the  de- 
fendant guilty  ;  he  appeals  on  the  annexed  grounds. 


GROUNDS   OF   APPEAL. 


1st.  Because  his  Honor,  the  presiding  Judge,  erred  in  charging  the  jury : 
1.  That  the  common  law  of  ICngland,  in  *re]ation  to  roads,  was  not  appli-  r^ , « 
cable  to  roads  in  this  State.     2.     That  the  road  in  this  case  had  been  ^ 
established  as  a  public  road.     That  a  civil  action  could  not  be  maintained  for 
obstructing  a  road  such  as  this.     4.  That  this  road  had  not  been  abandoned. 

2.  Because  the  verdict  of  the  jury  was  contrary  to  the  evidence  that  this 
had  never  been  established  as  a  public  road ;  that  it  had  not  been  opened  by 
the  public  ;  that  it  never  had  been  repaired  or  worked  on  by  the  inhabitants  ; 
that  it  never  had  been  regarded  by  the  commissioners  of  roads,  or  by  the 
inhabitants  of  the  neighborhood,  as  a  public  road  ;  that  it  had  been  obstructed 
by  several  persons,  in  various  places,  for  twenty  years ;  that  during  a  period  of 


30  COLUMBIA,    DECEMBER,    1840.      VOL.  I.  [*46 

ten  or  twelve  years,  the  mill  to  which  it  led  had  been  destroyed  and  the  road 
abandoned  ;  that  the  road  had  not  been  entirely  obstructed,  but  only  turned  ; 
that  the  defendant  was  indicted  for  obstructing  a  public  road,  and  that  this 
road  led  only  to  a  grist  mill ;  as  well  as  the  law  in  relation  thereto. 

ORDER  OF  THE  COUNTY  COURT, 

At  a  Court  held  and  continued  by  adjournment  for  Chester  county,  at  the 
court  house  of  said  county,  on  the  31st'  day  of  July,  in  the  year  of  our  Lord 
one  thousand  seven  hundred  and  ninety-eight,  and  of  the  independence  of  the 
United  States  of  North  America  the  twenty-third,  present  Joseph  Brown  and 
William  (jaston,  Esquires,  two  of  the  Judges  of  the  Court. 

On  petition,  ordered,  that  a  travelling  road  be  laid  out  and  cleared  from 
Thomas  Wallace's  to  llobert  Owens'  grist  mill,  and  to  be  laid  out  at  the  direc- 
tion of  Thomas  Wallace  and  William  Monahen,  the  nearest  and  best  way,  so  as 
not  to  interfere  with  the  iuclosure  of  any  person  whatsoever,  and  to  be  cleared 
and  kept  in  repair  by  the  persons  who  live  contiguous  thereto,  and  have  the 
benefit  thereof;  also,  a  road  from  the  mill  to  intersect  the  Charleston  road 
near  the  lower  corner  of  Thomas  Cabeen's  field,  and  thence  into  the  Fishdam 
road  above  William  Murray's,  on  the  same  conditions  and  premises  as  the 
above,  at  the  direction  of  James  Vauts. 

Ordered,  that  a  public  road  be  laid  out  and  made,  the  nearest  and  best  way, 
taking  off  the  Charleston  road  where  the  old  road  formerly  took  off,  below 
Stinsou's  old  field,  to  strike  the  Fairfield  county  line  at  the  same  place,  at 
jirA^^l  where  the  *Mountain  Gap  road  intersects  the  said  Fairfield  county  line, 
-'  at  the  direction  of  John  McDivniels;  and  that  all  persons  living  two  miles 
of  said  road,  within  the  limits  of  said  county,  be  called  on  to  clear  and  keep  the 
same  in  repair. 

Curia,  per  O'Neall,  J.  In  tins  case  my  opinion  expressed  on  the 
circuit  has  undergone  no  change.  The  facts  have  been  found  by  the  jury, 
that  in  its  origin,  this  road  was  laid  out  as  a  public  road  ;  that  it  has 
been  used  as  such  ever  since  ;  and  that  there  has  been  iio  such  change  of 
it  as  would  affect  its  allowance. 

It  only  then  remains  to  inquire  whether,  in  law,  it  can  be  regarded  as 
a  public  road  ? 

I  tliink  there  is  sopie  confusion,  in  cases  bf  this  kind,  by  the  manner  in 
wliich  higliways  are  defined  in  the  books.  The  distinction  between  public 
roads,  (consisting  of  highways  and  private  roads  or  paths,)  and  private 
ways,  have  not  been  observed. (a)  Judge  Brevard,  (3  Brev.  85,)  in  the 
ca^e  of  e.rprMe  Withers,  has,  1  think,  properly  classed  and  distinguished 
puljlic  roads.  He  says  "public  roads  are  best  distinguished  into  two 
sorts,  namely,  highways  and  private  roads  or  paths.  A  highway  is  a 
principal  road  leading  to-  a  market  town,  or  some  place  of  general 
resort,  and  is  commonly  travelled  by  all  kinds  of  people.  Private 
roads  are  neighborhood  ways,  not  commonly  used  by  other  than  the 
l)coi»lc  of  the  neighborhood  where  they  arc,  although  they  may  be  used 
by  any  one  wlio  may  Iiave  occasion  to  do  so,"  A  private  way,  ou 
the  other  liand,  is  a  way  arising  by  grant  for  the  use  of  one  or  more 
individuals.  The  road  law  of  1721,  (P.  L.  iii.  sec.  19,)(6)  provides  that 
"  all  and  every  the  respective  commissioners  above  mentioned,  within 
their  parishes  or  divisions,  or  the  majority  of  them,  shall,  witli  all  con- 
venient speed  after  tbe  ratification  of  this  Act,  at  the  equal  charge  and 

ill  n  o^  "^  V'/^;   °  ^^''^-  ^^^-    2  N.  &  McC.  527.    4McC.  G8.    3McC.  170.    An. 
(b)  0  Stat.  .04,  §  19.     An. 


*47] 


STATE  VS.  MOLBEY.  31 


labor  of  all  and  every  the  male  inhabitants  residing  within  the  respective 
divisions  aforesaid,  from  the  age  of  sixteen  to  sixty  years,  make,  mend, 
alter  and  keep  in  repair,  all  and  every  the  high  roads,  not  exceeding 
forty  feet  wide,  private  paths,  bridges,  causeways,  creeks,  passages  and 
water  courses,  laid  oiit  and  to  be  laid  out  in  the  aforesaid  several  pre- 
cints  and  parishes  "  This  Act,  it  will  be  observed,  is  in  exact  conformity 
to  Judge  Brevard's  classification  of  public  roads.  By  public  authority, 
two  kinds  *of  roads  then  existed,  and  were  afterwards  to  exist,  in  r^.Q 
South  Carolina,  "high  roads"  and  private  paths."  What  was  '- 
meant  by  "  private  paths,"  has  been,  I  think,  further  elucidated  by  Judge 
Brevard,  in  the  case  exparte  Withers,  (3  Brev.  86.)  He  says,  "  by  the 
words  "  private  paths,"  "  it  seems  clear  that  the  Legislature  meant  roads 
free  and  common  to  all  who  might  choose  to  make  use  of  them  ;  that  is 
to  say,  public  ways  diverging  from  and  running  across  the  main  or 
principal  roads  or  highways,  commonly  called  "  great  roads,"  and  not 
private  paths  exclusively  apjiropriated  for  private  purposes."  This 
definition  embraces,  I  think,  very  clearly,  the  road  in  question.  But  this 
can  be  made  more  apparent  by  a  further  reference  to  our  legislation  on 
this  subject.  By  the  Act  of  1185,  sec.  55.  (P.  L.  385,)(a)  the  Judges  of 
the  county  court  were  clothed  with  all  the  power  and  authority  of  the 
commissioners  of  the  roads  in  relation  to  roads.  The  Act  of  1788,  (P.  L. 
443-4, )(?>)  provided  for  the  appointment  of  commissioners  of  the  roads  ; 
and  by  the  Gth  section,  provides  that  they  shall  be  authorized  and 
required  to  lay  out,  make  and  keep  in  repair  all  such  "  high  roads, 
private  paths,"  &c.,  as  they  shall  judge  necessary.  The  ITth  section  of 
the  same  Act,  (P.  L.  441,)  provides  that  the  Judges  of  the  county  court 
shall  be  vested  with  the  same  powers  respecting  the  high  roads  and  bridges 
with  which  the  commissioners  were  by  this  Act  clothed.  Under  this 
authority  they  laid  out  the  road  in  dispute,  and  its  origin  there  can  be 
therefore  no  question  that  it  was  a  public  road,  distinguished  from  a  high 
road  as  a  private  path.  Independent  of  the  public  character  of  the  road, 
ascertained  from  its  public  origin,  the  terms  made  use  of  in  the  order  "  a 
travelling  road,"  make  it  as  open  to  public  use  as  if  the  words  had 
been  in  the  succeeding  order — "  a  public  road,"  used  by  the  Judges, 
ordering  another  road  to  be  laid  out.  But  neither  the  commissioners  of 
roads  nor  the  judges  of  the  county  court  ever  had  the  power  to  lay  out  a 
mere  private  way.  This  is  conclusively  shown  by  exparte  Withers,  (3 
Brev.  83.)  The  power  of  laying  out  a  mere  private  way,  never  having 
been  conferred,  as  I  have  no  doubt  it  never  could  have  been  consti- 
tutionally, exercised  or  conferred,  by  the  Legislature,  it  follows,  that  all 
roads  laid  out  by  public  authority,  must  be  regarded  as  public  roads,  in 
the  obstruction  of  which  a  nuisance  may  be  committed.  It  is,  however, 
supposed,  unless  the  public  are  liable  to  keep  the  *road  in  repair,  ^^ ,  „ 
that  it  cannot  be  regarded  as  a  public  road.  But  this  I  do  not  ad-  ^ 
mit.  There  are  many  roads  which  are  essentially  public,  where  there  is 
perhaps  no  liability  to  keep  them  in  repair.  An  instance  of  this  kind 
will  be  found  in  the  case  of  Rowland  vs.  Wolf,  (1  Bail.)  On  the 
present  occasion,  I  am,  however,  far  from  believing  that  the  commis- 
sioners of  high  roads,  for  Chester  are  not  liable  to  keep  this  road  iu 

(a)  7  Stat.  237.     An.  (6)  9  Stat.  309.     An. 


32  COLUMBIA,   DECEMBER,    1840.      VOL.  I.  [*49 

repair.  For  the  order  directing  tlie  roads  to  be  laid  out,  directs  "  that 
it  sliall  be  cleared  and  kept  in  repair  by  the  persons  who  live  contig-uous 
thereto  and  have  the  benefit  thereof."  This  is  in  exact  conformity  to  the 
powers  conferred  on  the  county  court  judges  and  the  commissioners 
of  roads  by  the  Acts  of  '85  and  '88.  A  road  laid  out  and  directed 
by  the  couuty  court  judges  iu  '98,  to  be  kept  in  repair,  was  in  pursuance 
of  the  power  delegated  to  them  by  the  Legislature,  and  is  in  law  the  same 
as  if  the  Legislature,  by  Act,  had  done  the  same  thing.  Looking  at  it 
as  a  road  established  by  the  Legislature,  and  by  Act  directed  to  be  kept 
iu  repair,  there  could  be  no  doubt  of  the  liability  of  the  commissioners 
to  keep  it  in  repair,  no  matter  how  long  they  might  have  neglected  it. 
This  last  observation  however,  must  be  always  taken  with  the  qualification, 
that  the  road  had  not  lost  its  public  character  by  non  user.  On  the 
present  occasion,  the  jury  have  found  that  the  road  had  not  been  so  long 
disused  as  to  destroy  it. 

These  views,  it  seems  to  me,  end  all  controversy  about  the  character 
of  the  road,  which  might  otherwise  arise  from  its  terminus.  The  cases 
iu  which  that  would  have  effect  are  where  the  way  is  to  be  referred  to 
prescription  merely. 

The  motion  is  dismissed  :  the  whole  court  concurring. 

Gregg  and  IIcAlilly,  for  the  motion.  Flayer,  Solicitor,  contra. 

'~  See  Infra,  329.  State  r.  Pettus,  1  Rich.  393.  State  v.  Sartor,  2  Strob.  60.  A^ash 
V.  Peden,  1  Sp.  21.  Heijward  v.  Cldsholm,  11  Rich.  262.  6  Rich.  399.  5  Rich. 
186.     An. 


*50]      *David  Ewart  vs.  M.  Gt.  ]S'agel  and  A.  G,  Nagel. 

A  feme  covert  cannot  be  made  a  feme  sole  carrier  under  the  custom,  or  under  the 

Acts  of  the  Legislature  of  1823  and  1824. 
The  privilege  of  a  feme  sole  trader  does  not  reach  beyond  buying  and  selling 

merchandize.     S.  P.  1  Hill,  429. 

Before  O'Neall,  J.,  at  Columbia,  Spring  Terra,  1840. 

^  This  was  an  action  against  defendant,  M.  G.  Xagel  the  wife  of  A.  G. 
Xagcl,  (who  was  joined  for  conformity  sake,)  as  a  feme  sole  trader,  to 
charge  her  with  a  loss  of  cotton  shipped  on  a  boat  alleged  to  belong  to 
her,  called  the  Swan. 

The  ])roof  was  that  her  husband,  A.  G.  Nagel,  received  the  cotton  and 
signed  the  receipt  as  agent  for  M.  G.  Nagel.  He  generally  acted  in  all 
matters  al)out  the  boat.  Mrs.  Nagel  had  a  store  in  Columbia,  or  rather 
one  was  carried  on  in  her  name.  Her  husband  acted  as  her  agent  in 
every  thing  about  it. 

He  was  insolvent  and  had  no  i)roperty  :  the  property  in  his  possession 
was  considered  and  sold  as  the  property  of  his  wife.  She  was  cou- 
Kidercd  as  the  owner  of  the  boat ;  but  there  was  no  proof  on  that  matter 
further  than  mere  reputation  :  for  the  possession  in  fact  was  by  Major 
Nagel,  her  liusl)aiid.     She  was  also  regarded  as  a  free  dealer. 

The  lo.-s  of  the  cotton  was  proved,  and  the  only  question  was  whether 


*50]  EWART   VS.   NAGEL.  33 

Mrs.  Nagel,  a  feme  covert,  could  be  made  liable  as  a  common  carrier. 
I  thought,  and  so  instructed  the  jury,  that  there  could  not  be  such  a 
thing  as  a  feme  sole  trader  in  boating.  That  the  character,  with  its 
privileges  and  liabilities,  only  existed  in  the  mercantile  business  carried 
on  by  the  wife  separate  and  apart  from  the  husband.  His  interference 
with  the  business  would  prevent  the  wife  from  l)eing  regarded  as  a  feme 
sole  trader.  That  the  act  of  the  Legislature  had  not  extended  the  com- 
mon law  in  this  respect :  it  had  added  to  the  common  law  requisitions, 
the  publication  of  a  month's  notice  of  the  intention  to  carry  on  a  sepa- 
rate business,  and  to  become  a  feme  sole  trader. 

That  the  only  ground  on  which  the  defendant  could  be  liable  was, 
that  the  boat  was  her  separate  estate;  and  that  hence  earning  for  her 
freight,  she  would  on  that  account  be  liable.  The  jury  were  told  to 
enquire  as  to  that  fact,  and  if  *they  were  satisfied  of  its  truth,  to  p,:  r, 
find  for  the  plaintiff,  otherwise  for  the  defendants.  '- 

The  jury  found  for  the  defendants.  The  plaintiff  moves  the  Court  of 
Appeals  for  a  new  trial,  on  the  annexed  ground. 

GROUNDS  OF  APPEAL, 

Because  the  evidence  having  been  full,  clear  and  uncontradicted,  that  the 
defendant,  M.  G.  Nagel,  was  a  free  dealer  and  sole  trader  in  the  business  of 
merchandise,  and  of  boating  connected  therewith  ;  that  the  store  and  boat 
belonged  to  her  as  a  free  dealer  and  sole  trader,  and  were  thereby  protected 
from  the  creditors  of  the  defendant,  A.  G.  Nagle,  who  was  notoriously  and 
utterly  insolvent,  and  who  acted  as  her  clerk  and  agent  in  the  store  and  about 
the  boat ;  that  as  such  free  dealer  and  sole  trader,  she  received  the  cotton  of 
the  plaintiff  of  the  value  of  -SI 390  62  on  board  her  said  boat,  to  be  carried  to 
Charleston  for  certain  freight,  to  be  paid  to  her  as  such  free  dealer  and  sole 
trader;  and  that  the  said  cotton  was  never  re-delivered  to  the  plaintiff  or 
his  factors,  whereby  he  suffered  a  loss  of  81.390  62;  the  verdict  of  the  jury 
was  not  only  contrary  to  the  said  evidence,  but  without  any  evidence  whatever, 
and  was  contrary  to  the  law  in  relation  to  the  subject  matter  of  said  evidence. 

Curia,  per  O'jSTeall,  J,  This  Court  is  satisfied  with  the  instruction 
given  by  the  presiding  Judge,  that  "there  cannot  be  such  a  thing  as  a 
feme  sole  trader  in  boating  :"  The  other  instruction  that  she  might  be 
liable  in  respect  of  the  boat  being  her  separate. estate,  is  more  doubtful  : 
but  as  that  was  in  favor  of  the  plauitiff,  and  as  the  jury  have  found 
against  the  fact  which  was  the  predicate  of  that  instruction,  and  as  we 
think  their  verdict,  in  that  behalf,  ought  not  to  be  disturbed,  it  is  unneces- 
sary now  to  give  a  definite  opinion  ou  that  point. 

I  will,  in  as  few  words  as  possible,  assign  the  reasons  why  we  think 
there  cannot  be  a  feme  sole  trader  in  boating.  The  utmost  latitude  to 
which  this  extraordinary  privilege  can  be  extended,  would  be  to  allow  it 
to  attach  to  other  business  besides  merchandise,  which  females  can  and 
usually  do  carry  on  without  the  aid  of  their  husbands.  Generally 
speaking,  the  custom  ought  to  be  strictly  construed  ;  and  there  is  little 
*reason  why  we  should  give  it  a  wider  extension  here  than  it  bad  r^-rn 
in  London.  '- 

The  Act  of  1144,  sec.  10,  (P.  L  190,)(a)  recognized  the  existence  of 
feme  sole  traders,  and  fully  justified  the  Court  in  applying  the  custom,  as 

(a)  3  Stat.  420:     See  also  Act  of  1712.     2  Stat.  593.     An. 
YoL.  I.— 4 


34  COLUMBIA,    DECEMBER,    1840.      VOL.  I.  [*52 

was  done  in  1198,  by  the  constitutional  court,  to  the  case  of  Neiubiggin 
vs.  Fillans  and  tvife,  (2  Bay,  164.)     That  case  arose  out  of  buying  and 
selling  merchandize.     The  Court,  iu  that  case,  expressly  recognize  the 
custom,  as  stated  in  Mr.  Turnbull's  argument,  to  be  that  "  where  a  ferae 
trades  by  herself  in  one  trade  with  which  her  husband  doth  not  inter- 
meddle,  and  buys  and  sells  in  that  tmde,  then  the  feme  shall  be  sued, 
and  the  husband  named  only  for  conformity  and  if  judgment  be  given 
against  him,   execution  shall  be  only  against  the  feme."     So  in  Surtell 
ads.  Brailsfoi'd,  (2  Bay,  333,)  the  Judges  maintained  the  same  doctrine, 
when  they  said  that  "  the  defendant  kept  a  shop  and  carried  on  business 
in  her  own  name,  apart  from  her  husband,  (if  she  ever  had  one)  and  in 
which  he  never  intermeddled  for  the  space  of  ten  or  twelve  years,  which 
constituted  her  a  sole  dealer  at  common  law."     These  two  cases  consti- 
tuted the  guide  to  the  profession  of  the  law :  and  it  was,  I  think,  the 
generally  received   opinion,  that  a  feme  covert  could  not  acquire  the 
character  of  a  sole  trader  in  any  other  way  than   by  making  out  the 
proof  of  the  facts  required  by  the  custom,  until  the  cases  of  McGrath  vs. 
Bobison,  (1   Eq.  Rep.  445,)  and  Miller  vs.  Tollison,   (Harp.  Eq.  Rep. 
145.)     The  first  of  these  cases  has  been,  by  Judge  Johnson,  in  the  case 
of  McDaniel  vs.  Cornioell,  shown  to  be  not  inconsistent  with  the  customs. 
'The  case  of  Miller  vs.  Tollison  extended  the  custom  to  the  business  of 
tavern  keeping,  and  it  may  be  sustained  on  the  ground  that  it  is  a  busi- 
'ness  that  females  may  and  do  carry  on  without  the  aid  of  their  husbands  ; 
'but  I  confess  that  I  should  be  little  disposed  to  take  that  view,  unless 
constrained  so  to  do  by  the  case  to  which  I  have  referred. (a)     The  Acts 
of  1823  and  1824,  (pages  35  and  23)(6)  have  been  the  fruitful  source  of 
many  errors  in  this  behalf.     It  was  supposed  that  they  had  introduced  a 
■new  mode   of  constituting  feme  coverts  sole  traders,  when,  in   point  of 
fact,  they  only  recognized  the  custom,  and  imposed  additional  restrictions 
on  its  allowance.     The  case  of  McDaniel   &  Cornioell,   (1   Hill  29,) 
*Ro-l  corrected  these  errors      By  *it,  it  was  held  that  the  privilege  of  a 
-'  feme  sole  trader  arose  out  of  the  business  of  buying  and  selling 
merchandize,  carried   on  by  a   feme   covert  without  any  intermeddling 
therewith  l)y  the  husband,    after  a   compliance,  on  her  part,  with  the 
requisitions  of  the  Acts  of '23  and  '24. 

Tins  Ijrief  review  of  the  law  of  this  State  fully  sustains  the  position 
that  a  feme  covert  could  not  be  made  a  feme  sole  carrier,  under  the 
custom,  or  under  the  Acts  of  the  Legislature.  If  we  were,  however, 
free  to  reason  about  it,  as  an  original  proposition,  we  must  come  to  the 
same  conclusion.  It  is  utterly  inconsistent  with  the  duties  of  the  wife  to 
the  husband  and  to  her  children,  that  she  should  engage  in  a  business 
which  would  deprive  them  of  her  society  and  assistance,  which  would 
Bend  her  out  into  the  I)usy  world  to  mingle  with  all  classes,  and  lose  that 
distinctive  modesty  of  character  which  makes  her  at  home  and  abroad 
the  ornament  and  the  directress  of  society.  But  it  is  argued  that  the 
business  of  a  common  carrier  is  such  as  would  make  the  person  engaged 
in  it  a  trader  within  the  meaning  of  tlie  English  statutes  of  bankruptcy. 
This  m:iy  be  so,  and  still  it  will  not  help  the  plaintiff.     For  the  term 

(«)  C  Stat.  212.     Id.  23G  §  2.     An. 

(/')  See  Dial  v.  Knmffer,  3  Rich.  78.     An. 


*53] 


MYERS   VS.    LEWIS.  35 


trader,  when  applied  to  a  feme  covert,  is  used  in  a  restricted  sense.  Its 
meaning  is  pointed  out  by  the  custom  of  London,  which  has  been 
allowed  in  this  State.  According  to  that,  it  does  not  reach  bej'ond 
buying  and  selling  merchandize. 

The  motion  is  dismissed  :  Richardson,   Earle,    Butler,  J  J.,  con- 
curred :  Evans  and  Gantt,  JJ.  absent. 

Gregg,  for  the  motion,     De  Saussure  and  Black,  contra. 


*Mrs.  p.  Myers  vs.  "Wm.  J.  Lewis.  [*54 

The  Act  of  1799,  requiring  the  plaintiff  in  any  writ  of  attachment  to  enter 
into  bond,  before  the  clerk  of  the  Court  of  the  district  in  which  such  wi'it  of 
attachment  is  issued,  to  the  defendant,  in  double  the  amount  of  debt  or 
demand  for  which  the  attachment  is  issued,  requires  that  the  bond  given  shall 
be  only  executed  Ity  the  plaintiff,  or  his  attorney  in  fact,  and  acting  in  his  room 
and  stead.     No  other  person  is  authorized  to  execute  such  bond. 

Before  Evans,  J.,  at  Richland,  Fall  Term,  1840. 

This  was  a  motion  made  to  quash  a  writ  of  attachment  which  had  been 
issued  by  the  plaintiff  against  the  defendant,  and  the  bond  executed  by 
her  son,  William  M.  Myers,  Esq.  His  Honor  overruled  the  motion, 
upon  the  ground  that  it  was  sufficient  that  the  bond  required  by  the  Act 
had  been  given  by  the  plaintiff's  son  ;  from  this  decision  the  defendant 
appealed  to  the  Court  of  Appeals,  and  renewed  the  motion  to  quash  the 
writ. 

Curia,  per  O'Neall,  J.  The  Tth  section  of  the  Act  of  1799, 
entitled  "An  Act  supplementary  to  an  Act  entitled  an  Act  to  establish 
an  uniform  and  more  convenient  system  of  judicature,"  (2  Faust,  315,) 
enacted  that  it  "shall  not  be  necessary  to  petition,  as  heretofore,  any  of 
the  judges  of  the  State  for  any  writ  of  attachment."(a)  Accompanying 
this  enactment  is  a  proviso  in  tlie  following  words  :  "Provided,  always, 
that  no  writ  of  attachment  shall  issue  before  the  jylaintiff'  has  given  bond 
to  the  defendant,  in  double  the  amount  for  which  the  attachment  issues, 
to  be  talvcn  by  and  lodged  with  the  clerk  of  the  district,  to  be  answerable 
for  all  damages  which  the  defendant  may  sustain  by  any  illegal  conduct 
in  obtaining  said  attachment."  The  words  of  this  proviso  are  so  plain 
that  we  are  compelled  to  enforce  them.  None  but  the  plaintiff,  or  his 
attorney  in  fact,  acting  in  his  name  and  stead,  can  execute  the  bond. 
We  have  no  right  to  do  more  than  to  say  "  ita  lex  acripta.''''  If  we 
were,  however,  at  liberty  to  reason  about  it,  we  should  arrive  at  the 
same  conclusion.  Tlie  plaintiff  suing  can  just  as  easily  constitute  an 
attorney  in  fact  to  execute  the  bond,  as  he  can  appoint  an  attorney  at 
law  to  sue.  The  defendant,  too,  is  "^entitled  to  the  security  of  the  i-.-^^^^ 
party  professing  to  Ije  his  creditor,  to  be  answerable  for  all  damages  L 
for  any  illegal  conduct  attending  the  suing  out  his  attachment.     If  this 

(a)  7  Stat.  294.     See  Act  of  1839.     11  stat.  70  §  21.     An. 


36  COLUMBIA,    DECEMBER,    1840.      VOL.  I.  [*55 

were  not  so,  persons  absent  from  the  State,  and  having  property  in  it, 
niijirht  be  harassed  by  attachments  on  unfounded  claims,  and  the  persons 
setting  them  on  foot  might  shelter  themselves  behind  the  bond  of  irre- 
sponsible persons.  So,  too,  it  is  for  the  plahititf' s  interest  that  he,  in 
person  or  by  attorney,  should  execute  the  bond.  He  might  not  be 
willing  to  incur  the  responsibilities  of  an  attachment,  if  informed  that 
that  was  his  mode  of  redress.  It  is  the  right  and  the  duty  of  a  party  in 
Court,  to  be  informed  correctly  of  the  consequences  likely  to  result  from 
the  proceeding  set  on  foot  in  his  name.  The  attachment  Act  operating 
in  rem,  and  divesting  the  alleged  debtor  of  his  power  of  controlling  his 
own  property  before  the  debt  is  ascertained  by  the  judgment  of  a  Court, 
ought  to  be  strictly  construed.  And  hence,  therefore,  we  should  not  be 
at  liberty  to  seek  for  an  interpretation  beyond  the  plain  meaning  of  the 
words. 

The  bond  in  this  case  was  not  given  by  the  plaintiff,  or  in  her  name. 
It  was  the  bond  of  her  son,  William  M.  Myers.  This  was  no  compliance 
with  the  Act,  and  hence  the  writ  was  improperly  issued. 

The  motion  to  reverse  the  decision  of  the  Judge  below,  and  to  quash 
the  writ  of  attachment  is  granted. 

Gantt,  Earle,  Butler,  JJ.,  concurred:  Richardson,  J,  dissented, 

Cheves,  for  the  motion.    Black  and  Arthur,  contra. 

See  Dillon  vs.  Watkins,  2  Sp.  445.  Bi/neYS.  Bi/ne,  1  Rich.  438.  Wigfallvs.  Byne, 
1  Ricli.  412.     An. 


♦56]  *JoHN  T.  Seibles  vs.  Thomas  B.  Blackwell. 

Tlie  opinion  of  witnesses  as  to  the  existence  of  disease  in  a  negro,  who  had  not 
the  aid  of  science  to  guide  them,  are  inadmissible,  unless  sustained  by  facts 
showing  the  opinion  to  be  true. 

Tlie  plaintiff,  in  an  action  on  the  covenant  of  warranty  of  soundness,  where  there 
has  been  a  recision  of  the  contract,  or  where  the  property  is  dead  or  valueless, 
is  entitled  to  recover  back  his  purchase  money  and  interest.  And  when  he 
has  offered  to  restore  the  property  to  the  defendant,  and  he  has  refused  to  accept 
it,  and  the  plaintiff  is  compelled  to  keep  the  property  and  incur  expense 
on  account  of  it,  he  may  also  recover  such  expenses. 

Before  Gantt,  J.,  at  Newberry,  Fall  Term,  1840. 

Judge^s  Report. 

This  was  an  action  of  covenant,  for  breach  of  warranty  in  the  sale  of  a 
negro  by  defendant  to  idaintifF.     Verdict  for  i)laintiff. 

I  thought  that  if  the  i)Iainlifl"  was  entitled  to  recover  under  the  evi- 
dence, he  might  recover  also  what  had  been  paid  for  medical  assistance 
alTorded  the  negro,  and  also  for  the  expenses  of  her  burial.  I  have  no 
])articular  recollection  of  the  testimony  disclosed  by  the  publication  and 
rea<ling  of  the  several  examinations  taken  by  commission.  I  certainly 
did  not  sanction  as  evidence  any  expression  of  opinion  merely  on  the 
part   of  the  witnesses,    not   founded  on   the  development   of  facts.     I 


*56]  SEIBLES   VS.    BLACKWELL.  3t 

thought  it  doubtful  whetlier,  under  the  evidence,  the  jury  could  find  for 
the  plaintiff,  and  expressed  no  opinion  as  to  the  course  they  should 
pursue,  but  left  the  case  with  them  on  the  evidence  furnished,  I  enclose 
the  notes  of  the  evidence. 

Defendant  appeals  for  a  new  trial  and  in  arrest  of  judgment : 

1.  Because  his  Honor  charged  the  jury  that  they  might  include  in  their 
verdict  what  they  thought  reasonable  for  medical  attention  and  burial  ex- 
penses. 

2.  That  his  Honor  admitted  evidence  of  burial  expenses  and  medical  atten- 
tion on  said  negro  girl,  although  no  evidence  was  adduced  to  show  that  he  had 
incurred  any  expenses  or  paid  a  medical  bill. 

3.  Because  his  Honor  admitted  the  opinion  of  the  witnesses  (who  had  been 
examined  by  commission)  to  be  read  in  evidence,  although  objected  to  in  the 
cross  examination, 

*4.  Because  the  evidence  is  wholly  insufficient  to  warrant  the  verdict  [*57 
found  by  the  jury. 

5.  Because  his  Honor  erred  in  not  charging  the  jury  that  the  opinion  of  the 
witnesses  taken  by  commission  was  incompetent  and  should  be  disregarded. 

6.  Because  the  verdict  is  in  other  particulars  contrary  to  law  and  evidence. 

Curia,  per  O'Xeall,  J.  The  third  and  fifth  grounds  are,  in  effect, 
the  same.  Both  question  the  propriety  of  receiving  and  considering  the 
opinion  of  witnesses  as  to  the  existence  of  disease  in  a  negro.  It  is  true 
that  the  mere  opinion  of  witnesses  who  have  not  the  aid  of  science  to 
guide  them,  would  not  have  any  weight  in  such  a  case,  and  would  be 
generally  inadmissible,  unless  sustained  by  facts  showing  the  opinion  to 
be  true.  On  looking  in  the  mass  of  written  evidence  in  this  case,  I  find 
that  the  witnesses  generally  said  they  thought  the  slave  to  be  unsound, 
and  if  they  had  stopped  there  such  testimony  ought  to  have  been  rejected  ; 
but  they  go  on  to  fortify  their  opinions  with  facts  showing  some  founda- 
tion for  them  ;  and  hence  they  were  admissible,  and  were  to  be  compared 
with  the  facts  by  the  jury,  (a)  The  fourth  and  sixth  grounds  are  general 
objections  to  a  verdict  on  a  very  doubtful  case  of  fact,  and  hence  can 
have  no  weight  here.  The  second  ground  need  not  be  noticed,  as  by  the 
view  we  take  of  the  first  ground,  the  subject  of  its  complaint  will  be 
removed. 

The  first  ground  makes  the  only  legal  question  in  the  case  ;  and  to  it 
we  will  now  direct  our  attention.  The  action  is  covenant  on  a  breach 
of  warranty  of  soundness  contained  in  the  defendant's  deed:  accompany- 
ing the  breach  of  the  warranty  of  soundness,  the  plaintiff  states  as  one  of 
the  consequences  of  it,  in  his  declaration,  that  he  "  was  put  to  great  ex- 
pense and  trouble,  to  wit,  to  the  amount  of  $200  in  and  about  her 
physician's  bill,  burial  expenses,  and  other  expenses."  This  is  a  sufficient 
statement  of  the  plaintiff's  loss  to  entitle  hivn  to  recover  the  physician's 
bill  and  burial  expenses,  amounting  to  $16,  if  by  law  he  can  be  permitted 
to  recover  them  under  the  proof  adduced  in  this  case.  The  plaintiff  in 
an  action  on  the  covenant  of  warranty  of  soundness,  where  there  has 
been  a  recision  of  the  contract,  or  where  the  property*  is  dead  or  r^co 
valueless,  is  entitled  to  recover  back  his  purchase  money  and  L 
interest.  In  some  cases,  where  he  has  offered  to  restore  the  property  to 
the  defendant,  and  he  has  refused  to  accept  it,  and  the  plaintiff  is  com- 

(a)  5  Strob,  177.     An. 


38         COLUMBIA,  DECEMBER,  1840.   VOL.  I.       [*58 

pelled  to  keep  the  property  and  incur  expense  on  account  of  it,  he  may 
also  recover  such  expenses.  In  2d  Camp.  82,  Gnrivell  vs.  Goare,  the 
very  point  now  before  us  received  the  consideration  of  Ch.  Justice  Sir 
James  Mansfield.  That  was  an  action  on  the  warranty  of  a  horse,  with 
a  count  for  horse  meat,  &c.  There  had  been  no  offer  to  return  the 
horse :  the  question  was,  whether  the  plaintiff  could  recover  for  his 
*' keep.'"  Sir  James  held  that  he  could  not.  He  said,  "  I  remember 
when  it  was  held,  that  an  action  could  not  be  maintained  upon  the  war- 
ranty without  an  offer  to  return  the  horse.  That  doctrine  is  now  exploded ; 
but  still,  unless  the  defendant  refuses  to  take  back  the  horse,  the  plaintiff 
cannot  complain  that  the  expense  of  the  keep  is  necessarily  thrown  upon 
him.  By  not  offering  to  return  the  horse  before  bringing  the  action,  he 
intimates  that  he  still  considers  the  animal  as  his  own,  and  he  therefore 
ought  to  maintain  him  at  his  own  expense. "(a)  The  rule  thus  stated 
meets  our  approbation.  We  think  no  expenses  attending  the  property 
ought  to  be  recovered,  unless  there  has  been  an  offer  to  restore  the  pos- 
session to  the  vendor  before  they  were  incurred.  For  as  soon  as  disease 
is  discovered,  it  ought  to  be  communicated  to  the  vendor,  and  the  oppor- 
tunity presented  to  him  to  take  the  property  in  his  own  charge  If  this 
is  done  he  may  comply  with  the  offer  at  once  ;  if  he  does  not,  then  he 
compels  the  vendee  to  incur  all  necessary  expenses  about  the  keeping 
and  preservation  of  the  property.  In  this  case  there  was  no  offer  by  the 
vendee  to  return  the  property  to  the  vendor.  There  was  ample  time  to 
have  done  so  after  the  discovery  of  the  unsoundness  and  before  the  death 
of  the  slave.  The  motion  for  a  new  trial  is  granted,  unless  the  plaintiff 
should  release  the  physician's  bill  and  funeral  expenses,  amounting 
together  to  $16  ;  if,  however,  he  should  so  release,  the  motion  is  then,  in 
that  event,  dismissed. 

The  whole  Court  concurred. 

Fair  and  Summer,  for  the  motion.    CahliveU,  contra, 
(a)  See  Carter  ^-  Harden  vs.  Walker,  2  Riclx.  45. 


*59]  *S.  Percival  atZs.  A.  Herbemont,  a(ZmV. 

Tlie  plaintiff  and  defendant  entered  into  a  special  written  agreement  to  submit 
the  matters  in  dispute  between  them  to  counsel :  but  no  particular  counsel 
was  named,  or  time  when  the  matter  was  to  be  submitted — defendant  agreeing 
to  pay  according  to  the  instructions  of  the  counsel;  and  in  default  of  their 
gftting  a  decision,  then  the  plaintiff  was  to  file  a  bill  in  the  Court  of  Equity, 
an<l  the  decree  of  that  Court  was  to  be  conformed  to  by  the  defendant.  This  was 
held  to  be  an  agrocniient  to  arbitrate. 

An  agreement  to  arljilrate,  or  a  bond  to  submit  to  arbitration,  may  be  the  subject 
of  a  suit,  when  the  damages  stipulated,  or  the  penalty,  will  authorize  a  re- 
covery ;  but  such  an  agreement  or  bond  would  not  deprive  either  party  of  his 
remerly  in  the  Courts,  or  oust  them  of  their  jurisdiction  in  regard  to  the  matter 
in  diHj)uto. 

A  vineyard,  thougli  not  annually  planted,  requires  great  preparatory  attention,  as 
wi'll  as  much  agricultural  labor  and  cultivation  to  bring  the  fruit  to  perfection, 
and  tlie  i)io(luct.s  arising  therefrom  maybe  denominated  a  crop  ;  and  hands 
employed  in  agricultural  jMirsuits,  whetlier  in  avineyard  or  a  cornfield,  are  liable 
to  be  retained  by  the  a<lnunistrator  of  an  estate,  after  the  first  of  March,  until 
the  crop  is  gathered,  or  at  farthest  until  the  last  of  December,  should  the  crop 
not  bo  gathered  before  that  time. 


*59]  PERCIVAL   ads.    HERBEMONT,    ADM'k.  39 

Before  Evans,  J.,  at  Richland,  Fall  Term,  1840. 

The  late  Mr.  Nicholas  Herbemont  was  entitled  to  the  slaves,  hereinafter 
named,  for  life.  He  died  in  June,  Among  the  negroes,  some  were  employed 
about  the  vineyard,  some  were  house-servants,  some  worked  on  tlie  farm, 
one  was  a  ditcher,  and  one  a  cooper  and  job  carpenter.  After  the  death  of 
Mr.  Herbemont,  a  difference  of  opinion  arose  between  the  plaintiff,  the 
administrator,  and  the  defendant.  Dr.  Percival,  who  represented  the 
remainder-men,  as  to  which  and  how  many  of  the  negroes  the  plaintiff 
was  entitled  to  retain  under  the  Act  of  Assembly,  which  provides  that  if 
one  entitled  to  a  life-estate  in  negroes,  die  after  the  first  of  March,  the 
negroes  shall  remain  on  the  plantation  until  the  crop  is  finished.  For 
the  purpose  of  settling  this  controversy  amicably,  a  written  agreement 
was  entered  into,  by  which  it  was  agreed  the  negroes  should  be  delivered 
to  Dr.  Percival,  except  two  ;  and  he  agreed  to  pay  hire  for  such  of  them 
as  the  counsel  of  the  parties  should  decide  the  plaintiff  was  entitled  to  ; 
and  on  default  of  such  decision,  the  plaintiff  was  to  file  a  bill  in  Equity, 
which  was  to  include  all  the  matters  in  controversy  between  *them,  ^:jc/,/^ 
and  the  defendant  agreed  to  pay  for  such  as  equity  should  decide  L 
the  plaintiff'  was  entitled  to,  and  such  hire  as  that  Court  should  decree. 
Without  regard  to  this  agreement,  the  plaintiff  brought  this  action  for 
negro  hire.  The  defendant  pleaded  the  general  issue,  and  a  special  plea 
in  bar,  setting  out  the  agreement.  The  plaintiff  took  issue  on  the  first 
plea,  and  demurred  to  the  second. 

If  this  plea  and  the  demurrer  had  been  brought  to  my  view  at  the 
opening  of  the  case,  I  should,  I  think,  have  sustained  the  plea,  because, 
where  there  is  a  binding  contract  still  subsisting  between  the  parties,  the 
action  should  be  special  on  the  contract.  But  I  was  not  informed  of  this 
until  all  the  evidence  had  been  given.  I  thought  it  best,  at  that  stage  of 
the  case,  to  sustain  the  demurrer,  and  send  the  case  to  the  jury  on  the 
facts. 

I  thought  and  so  charged  the  jury,  that  the  word  crop  was  to  be  taken 
in  its  popular  sense,  and  meant  any  annual  product  which  was  the  result 
of  culture  ;  and  in  this  sense,  wine  was  included  in  the  term  ;  and  that 
the  plaintiff  was  entitled  to  keep  the  negroes  employed  about  the  vine- 
yard, so  long  as  was  necessary  to  convert  the  grapes  into  wine. 

It  appears,  from  a  memorandum  made  by  the  jury,  and  returned  with 
their  verdict,  that  they  allowed  hire  for  Glasgow,  William,  George,  Yo- 
rick  and  Closes,  and  that  hire  was  allowed  from  the  time  they  went  into 
the  defendant'.s  possession,  to  the  1st  of  December.  The  evidence  in 
relation  to  these  negroes  was  this  : 

McDaniel  was  overseer  at  Palmyra,  where  there  were  twenty  acres 
of  vines  ;  besides  these,  he  cultivated  eight  and  a  half  acres  of  corn,  and 
one  acre  and  a  half  of  potatoes.  He  said  Yorick  was  a  vine  dresser,  and 
did  nothing  but  attend  to  the  vineyard  ;  Glasgow  split  rails  about  a 
month  ;  and  at  the  time  of  Mr.  Herbemont's  death,  in  June,  he  was 
ditching  at  the  farm,  near  Columbia ;  after  that  he,  as  well  as  the  rest, 
worked  in  the  field  until  they  were  delivered  to  the  defendant.  William 
was  a  cooper  and  jobbing  carpenter ;  George  was  a  small  boy,  thirteen 
years  old,  and  employed  as  a  house-servant.  Moses  did  not  work  in  the 
field.      At  the  season  of  making  wine,   all  the  negroes  were  usually 


40  COLUMBIA,    DECEMBER,    1840.      VOL.  I.  [*60 

employed  at  that  business ;  but  that  year,  the  grapes  nearly  all  rotted. 
Besides  the  farm  at  Palmyra,  there  was  another  of  small  extent,  fifteen 
„.^-,  or  twenty  acres,  near  Columbia,*  where  one  Miller  was  employed 
J  as  a  laborer.  His  account  of  the  employment  of  the  negroes, 
above  named,  as  well  as  that  of  Mrs.  Marshall,  was  substantially  the 
same  as  McDaniel's. 

Mr.  Guiguard  bought  the  grapes  from  the  plaintiff,  in  August.  The 
grapes  were  very  much  rotted  ;  twenty  hands,  in  two  or  three  days, 
gathered  them ;  they  might  have  been  gathered  by  from  two  to  four 
hands,  but  for  the  rot.  The  vintage  usually  over  by  the  1st  September. 
Gave  $50  for  the  grapes,  and  made  one  hundred  gallons  of  wine.  There 
were  casks  enough  on  hand  for  ten  times  the  quantity  of  wine  made.  A 
cooper  would  be  needed  only  two  or  three  days  to  tighten  the  casks.  A 
good  deal  of  work  necessary  on  a  vineyard.  The  notice  of  appeal,  with 
a  copy  of  the  plea  in  bar,  is  annexed  to  the  report. 

SPECIAL   FLEA. 

And  for  further  plea  in  this  behalf,  the  said  Samuel,  by  leave  of  the  Court, 
for  this  purpose,  first  had  and  obtained,  says  that  the  said  Alexander  ought 
not  to  have  or  maintain  his  aforesaid  action  thereof  against  him,  because  he 
says  that  heretofore,  to  wit,  on  the  twenty-fifth  day  of  July,  eighteen  hundred 
and  thirty-eight,  at  Cohimbia,  aforesaid,  there  being  then  and  there  a  differ- 
ence of  opinion  between  the  said  Alexander  and  the  said  Samuel,  one  of  the 
executors  of  the  last  will  and  testament  of  Mrs.  Caroline  Herberaont.  deceased, 
amongst  other  things,  respecting  the  right  to  the  possession  and  service,  during 
the  remainder  of  the  year  aforesaid,  of  some  of  the  slaves  bequeathed  by  the 
said  Mrs.  Caroline  Herbemont  to  the  said  Nicholas  Herbemont,  during  life,  and 
after  his  death  to  other  legatees,  to  wit,  the  said  slaves,  named  in  the  said  bill 
of  particulars  annexed  to  the  declaration  aforesaid  of  the  said  Alexander,  for 
the  purpose  of  adjusting  the  same  in  the  most  amicable  manner,  the  said 
Alexander  and  the  said  Samuel  agfreed.  in  writing,  amongst  other  things,  that 
all  of  said  slaves  should  forthwith  be  delivered  up  to  the  said  Samuel,  as  execu- 
tor as  aforesaid,  except  ]\Ioses  and  Yorick,  and  that  said  Moses  and  Yorick 
should  be  retained  by  said  Alexander,  as  administrator,  as  aforesaid,  until  the 
wine  from  said  year's  grapes  should  be  made,  when  they  should  also  be  delivered 
g9*|  "P  to  said  Samuel,  as  executor  as  aforesaid;  and  that  the  said  *Samuel, 
"  J  as  executor  as  aforesaid,  should  pay  to  said  Alexander,  administrator 
as  aforesaid,  for  the  service  and  labor  of  such  of  said  slaves  as  he,  the  said 
Alexander,  as  administrator,  as  aforesaid,  was  entitled  by  law  to  keep,  after 
the  death  of  said  Nicholas,  and  for  the  length  of  time  he,  the  said  Alexander, 
was  entilled  to  keep  the  same,  whatever  amount  their  counsel  should  agree 
upon  ;  and  in  case  the  counsel  of  said  Alexander  and  Samuel  should  not  agree, 
then  that  the  said  Samuel  would  pay  the  said  Alexander  whatever  the  Court 
of  Kfjuity  would  determine,  in  lieu 'of  such  service  and  labor;  and  that  the 
said  Alexander  should  file  a  bill  in  the  Court  of  Equity  for  that,  amongst  other 
purposes.  And  the  said  Samuel  avers  that  under  and  by  virtue  of  said  agree- 
ment, so  made  as  aforesaid,  he  had  the  possession,  service  and  labor  of  said 
slaves,  and  that  the  counsel  aforesaid  have  not  settled  the  amount  which  the 
said  Samuel  should  pay  the  said  Alexauder  therefor,  and  that  the  said  Alexan- 
der has  not  yet  filed  his  bill  in  the  said  Court  of  Equity  for  that  purpose, 
nor  has  flie  same  been  determined  by  the  said  Court  of  Ecpiity ;  all  which  the 
said  Samuel  is  ready  to  verily;  wherefore  he  prays  judgment,  if  the  said 
Alexander  ought  to  have  or  maintain  his  aforesaid  action  thereof  against 
iiim,  iic. 


*62] 


PERCIVAL   ads.    HERBEMONT,    ADM'r.  41 


COPY   OF    MEMORANDUM. 


We  find  for  the  plaintiff,  as  follows  : 

4   months   hire   of  Glasgow,  from   1st   August  to   the    Gth 

December,  at  $12     -            -            -            -            -  $48.00 

3  do.  Yorick,  1st  Sept.  to  1st  Dec.     -            -            -            -  36.00 
1   mo.  William,  carpenter,        -            .            .            .            .  20.00 

4  mos.  Silvia,  1st  Aug.  to  1st  Dec.  at  $G       -            -            -  24.00 

4   do.  Camilla, 24.00 

4   do.  Malvina,             --..-.  24.00 

4  do.  boy  George,  at  $3          -            -            -            -            -  12.00 

2i  do.  Moses,  15th  Sept.  to  1st  Dec.  -            -            -            -  20.00 


$208.00 

GROUNDS  OF  APPEAL. 

The  defendant  in  the  above  case  gives  notice  that  he  will  move  the 
Court  of  Appeals  to  reverse  the  decision  of  his  Honor,  the  presiding  Judge, 
sustaining  the  demurrer  to  defendant's  plea,  upon  the  ground  that  said  plea 
was  sufficient  *in  law  to  bar  the  plaintiff's  action,  and  that  the  demurrer  14^^,0 
should  have  been  overruled.  ■- 

And  failing  in  that  motion,  the  defendant  will  move  the  Court  of  Appeals 
for  a  new  trial,  upon  the  following  grounds  : 

1.  Because  the  agreement  between  the  parties,  offered  in  the  evidence,  was 
a  bar  to  plaintiff's  recovery. 

2.  Because  the  verdict  of  the  jury,  finding  hire  for  a  greater  number  of 
slaves  than  were  employed  in  the  crop,  and  for  a  longer  time  than  they  were 
thus  employed,  to  wit,  for  the  hire  of  the  slaves,  Glasgow,  William  and  George, 
who  were  not  employed  in  the  crop  at  all,  and  for  the  slaves  yorick  and  Moses, 
who  were  not  employed  in  the  crop,  but  in  the  vineyard,  and  after  the  vintage 
was  finished,  was  totally  contrary  to  the  testimony,  as  well  as  the  law  in  relation 
thereto. 

3.  Because  his  Honor,  the  presiding  Judge,  erred  in  instructing  the  jury 
that  grapes  constituted  a  crop  within  the  meaning  of  the  Act  of  1789,  and 
that  the  common  law  of  emblements  does  not  apply  to  said  act. 

Curia,  per  Butler.  The  Grst  thing  in  this  case  is  to  ascertain  the 
character  and  decide  on  the  effect  of  the  special  ])]ea  in  bar  filed  by  the 
defendant.  The  plea  sets  out  a  special  agreement,  by  which  it  appears  that 
the  plaintiff  had  delivered  up  to  the  defendant  certain  slaves  which  came 
into  his  possession  at  the  death  of  his  intestate,  and  had  retained  for  a 
specific  purpose  two  others  ;  and  that  defendant  was  to  pay  such  a  sum 
for  the  hire  of  those  he  took  as  should  be  determined  on  by  the  counsel 
of  the  parties,  or  by  the  Court  of  Equity  ;  and  tiie  plea  alleges  that  no 
sum  had  been  agreed  on  by  tlie  counsel,  nor  had  the  plaintitf  filed  his  bill 
in  the  Court  of  Equity.  But  it  does  not  aver  that  defendant  had  applied  to 
counsel  to  have  the  matter  adjusted  himself.  The  agreement  does  not 
indicate  the  time  of  adjustment,  or  specify  the  names  of  the  counsel  w^ho 
were  to  act  as  referees,  nor  does  the  plea  aver  any  matter  of  the  kind. 
It  seems  to  have  been  the  object  of  the  parties  to  submit  the  matter  in 
controversy  to  arbitration  ;  and  this  is  the  true  character  of  their  agree- 
ment. An  agreement  to  arbitrate,  or  a  bond  to  submit  to  arbitration, 
may  be  the  subject  of  a  suit,  where  the  damages  stipulated,  or  the  penalty, 
will  authorize  a  recovery.     But  such  an  agreement*  or  bond  would 


not  deprive  either  party  of  his  remedy  in  the  Courts,  or  oust  them 


^64 


of  their  jurisdiction  in  regard  to  the  matter  in  dispute.  This  agreement  is 


42  COLUMBIA,    DECEMBER,    1840.       VOL.  1.  [*64 

indefinite  and  uncertain  in  its  terms  and  provisions,  and  whether  either 
party  could  have  recovered  any  thing  in  an  action  brought  upon  it,  it  is 
now  unnecessary  to  determine.  But  we  are  all  of  the  opinion  that  it  does 
not  operate  as  a  bar  to  this  action.  Since  the  case  of  Thompson  vs. 
Gharnock,  (8  T.  R.  139,)  it  has  never  been  questioned  that  an  agree- 
ment to  refer  all  matters  in  difference  to  arbitration  is  not  sufficient  to 
oust  the  Courts  of  their  jurisdiction.  This  decision  has  been  frequently 
referred  to  and  approved  by  the  English  Judges,  both  of  Law  and  Equity. 
(2  Yes.  129;  6  Ves.  815;  2  Atkins.  569.)  To  determine  the  other 
grounds  of  appeal,  we  must  look  at  the  situation  and  rights  of  the  par- 
ties as  they  stood  at  the  death  of  Nicholas  Herbemont.  At  that  time  it 
is  conceded  that  the  defendant,  who  represents  the  remainder  men,  had  a 
right  to  take  into  his  immediate  possession  all  the  slaves  held  by  the 
tenant  for  life,  that  were  not  employed  in  making  a  crop — such  as  house 
servants,  artizans  not  connected  with  the  farm,  &c.  ;  and  that  plaintiff 
had  a  right  to  retain  till  the  crop  was  gathered  (or  the  last  day  of  De- 
cember,) all  the  hands  that  were  employed  in  making  a  crop.  And  I 
take  it  that  all  hands  that  were  necessary  to,  or  fairly  connected  with, 
the  farm,  might  be  retained  by  him  ;  no  matter  what  might  have  been 
their  particular  employment  at  different  times.  For  on  a  farm,  hands 
must  sometimes  be  engaged  at  one  thing  and  then  at  another.  The  first 
part  of  the  23d  clause  of  the  Act  of  1789,  (5  Stat.  HI,  §  3,)  is  as  fol- 
lows :  "  That  if  any  person  shall  die  after  the  first  day  of  March  in  any 
year,  the  slaves  of  which  he  or  she  was  possessed,  whether  held  for  life 
or  absolutely,  and  who  ivere  emploijed  in  making  a  croj),  shall  be  con- 
tinued on  the  lands  which  were  in  the  occupation  of  the  deceased,  until 
the  crop  is  finished,  and  then  be  delivered  to  those  who  have  a  right  to 
them."  It  was  contended  by  the  counsel  for  the  defendant,  who  argued 
the  case  with  much  learning,  that  the  meaning  of  crop  should  be  restricted 
to  the  cultivation  of  such  things  as  would  have  been  regarded  as  emble- 
ments at  common  law  ;  that  the  fruit  of  the  grape  vine,  like  other  fruit 
;^gr-|  growing  on  trees,  could  not  be  regarded  as  emblements  ;  *and  there- 
-^  fore  that  those  hands  that  were  employed  about  the  vineyard  were 
not  engaged  in  making  a  crop  within  the  meaning  of  the  law.  The 
ancient  notion  of  emblements  was,  that  he  should  reap  all  that  he  had 
sown  ;  and  in  p]ngland  it  applied  particularly  to  corn  and  other  annual 
vegetable  productions  that  depended  on  planting  and  cultivation.  The 
construction  of  the  Act  of  '89,  cannot  be  restricted  to  such  a  meaning 
whcn^  it  uses  the  word  crop.  For  in  South  Carolina  the  usual  crop  at 
the  time  the  Act  was  passed  consisted  of  tobacco,  indigo,  rice  and  Indian 
corn,  which  were  to  be  put  into  tlie  ground  after  the  first  of  March,  when 
the  right  of  the  administrator  of  a  tenant  for  life  attached  The  slaves 
were  not  to  be  retained  to  reap  and  gatlier  a  crop  which  had  been  planted 
by  the  deceased,  but  which  was  to  be  planted  and  cultivated  by  his 
administrator  or  executor. 

Before  .March,  hands  are  usually  employed  in  clearing,  repairing  fences, 
breaking  ui»  land,  and  preparing  for  a  crop;  and  it  is  hands  thus 
cmploy(;d  that  are  to  l)c  retained  by  the  executor — hands  emplo3^ed  in 
the  business  of  agriculture.  A  vineyard,  though  not  annually  planted, 
requires  great  jtreparatory  attention  as  well  as  much  cultivation  to  bring 
the  fruit  to  perfection.     The  product  depends  on  labor  and  industry  iu 


*65]  BAKER,    ET    AL.,    VS.    BUSHNELL.  43 

the  cultivation  of  the  soil ;  and  I  cannot  well  perceive  why  there  may  ' 
not  be  a  crop  of  grapes,  as  well  as  any  vegetable  production  depending 
on  cultivation.  In  England,  emblements  may  be  confined  to  such  vrge- 
tahlen  as  require  labor  and  attention,  and  may  not  extend  to  fruit  either 
growing  on  trees  or  vines  ;  but  our  Act  contemplates  such  crop  as 
require  agricultural  labor  to  bring  them  to  perfection  ;  and  all  hands 
being  employed  in  such  labor,  whether  about  a  vineyard  or  a  corn  field, 
are  liable  to  be  retained  by  the  administrator,  after  the  first  of  March  till 
the  crop  is  gathered,  (or  at  farthest  till  the  last  of  December,  should  the 
crop  not  be  gathered  before  that  time.)  This  brings  me  to  the  question, 
has  not  the  plaintiff  recovered  for  more  hands  than  were  employed  about 
any  crop,  and  for  time  beyond  the  period  when  the  crop  was  actually 
gathered  ?  And  it  appears  evident  to  me  he  has  ;  for  he  has  recovered 
for  the  hire  of  Yorick  and  Moses  after  the  vintage  was  over,  and  for 
George,  who  was  a  house  servant,  and  never  employed  in  the  crop. 
The  sums  allowed  for  these  amount  to  sixty-eight  dollars.  Unless  the 
plaintiff  will  release  *this  sum,  a  new  trial  is  ordered  ;  but  should  r^^oe 
he  think  proper  to  release  that  amount,  the  verdict  will  stand  good,  '- 
and  is  affirmed  for  the  balance. 

The  whole  court  concurred. 

Gregg  and  Gregg,  for  the  motion.     Cheves,  contra. 


Baker,  Johnson  &  Co.  vs.  Abner  BusHNELL.(a) 

Before  requiring  a  defendant,  wlio  applies  for  his  discharge  nnder  the  Insolvent 
Debtor^ s  Act,  to  join  in  an  issue  to  try  the  fairness  of  his  schedule,  tliere  ought 
to  be  some  showing  by  affidavits  ;  but  if  the  plaintiff,  without  affidavit,  makes 
the  charge  by  suggestion,  and  the  defendant  pleads,  he  waives  liis  right  to  call 
for  affidavits  ;  he  admits  by  his  plea  that  there  is  something  to  be  tried  by  a 
ji^iry. 

Before  Gantt,  J.  at  Edgefield,  Fall  Term,  1840. 

This  was  an  application  to  be  discharged  under  the  insolvent  debtors' 
Act.  The  discharge  of  the  prisoner  was  opposed  on  an  allegation  of 
fraud,  but  no  affidavits  containing  the  facts  had  been  filed.  Under  the 
authority  of  the  case  of  Faher  vs.  Zyhtra,  I  permitted  the  oath  to  be 
administered  to  the  prisoner.  The  direction  of  the  presiding  Judge  that 
an  issue  should  be  made  up,  neither  could  nor  was  intended  to  supercede 
the  requirements  of  the  law.  The  case  referred  to  of  Faber  vs.  Zijlstra 
was  designed  as  a  precedent  in  all  future  cases. 

The  plaintiffs  and  creditors  in  this  case  appeal,  and  now  move  the  Court  to 
reverse  the  order  of  the  presiding  Judge  for  the  prisoner's  discharge,  and  also 
for  leave  to  suggest  fraud  in  the  schedule  of  the  prisoner,  on  the  grounds  : 

*1.  Because  the  issue  to  try  the  question  of  fraud  in  the  schedule  j.^^, 
of  the  prisoner,  which  was  joined  by  the  parties,  dispensed  with  the  •-  * 
necessity  of  affidavits  suggesting  fraud. 

(a)  *S.  C.,7n/ra,  272.    An. 


44  COLUMBIA,    DECEMBER,    1840.      VOL.  I.  [*67 

2.  Because  the  direction  of  the  Judge  that  the  issue  be  made,  and  the  issue 
being  made  accordingly,  is  surprise  to  the  creditors,  and  prevented  them  from 
filing  affidavits  suggesting  fraud  in  the  schedule  of  the  prisoner. 

Curia,  per  O'Xeall,  J.  In  this  case  the  defendant  applied  for  the 
benefit  of  the  insolvent  debtors'  Act.  His  application  was  opposed  on 
the  ground  of  fraud.  A  suggestion  making  that  allegation  was  filed,  to 
which  the  defendant  pleaded,  and  issue  was  joined.  The  defendant  after 
this  moved  to  be  discharged,  because  no  affidavits  showing  tlie  truth  of 
the  charge  of  fraud  had  been  filed  ;  and  it  was  so  ordered  by  the  pre- 
siding Judge  ;  and  we  are  now  called  upon  to  reverse  that  order. (a) 
The  insolvent  debtors'  Act,  in  its  first  section,  (P.  L.  247-8,)  defines 
the  cases  in  which  a  party  may  have  the  benefit  of  its  provisions,  and 
prescribes  the  terms  and  mode  by  and  according  to  which  he  may  avail 
himself  of  its  provisions  ;  among  these,  he  is  required  to  exhibit  a  petition 
to  any  of  the  courts  of  law  from  whence  such  process  issued,  certifying 
the  cause  of  his  imprisonment,  together  with  an  account  of  his  real  and 
personal  estate.  When  he  applies  to  be  discharged,  he  is  required  to 
swear  inter  alia,  "that  the  account  may  be  delivered  into  this  honorable 
Court,  with  my  petition  to  this  Court,  doth  contain  a  true  and  full 
account  of  all  my  real  and  personal  estate,  debts,  credits  and  effects 
whatsoever,  without  exception."  The  Act  then  directs  "  if  the  Court 
shall  be  satisfied  with  the  truth"  of  said  oath,  that  the  prisoner,  upon 
making  an  assignment,  shall  be  discharged.  The  truth  of  the  oath  is  a 
preliminary  inquiry  ;  and  as  was  said  in  Faher  vs.  Zyhtra,  (2  Bay,  147,)  it 
may  sometimes  be  answered  by  an  examination  to  be  made  by  the  Court ; 
sometimes  it  may  require  the  aid  of  a  jury  ;  and  most  generally  that  is 
the  course  to  be  pursued.  Before  requiring  the  defendant  to  join  in  an 
issue  to  try  the  fairness  of  his  schedule,  there  ought  to  be  some  showing 
by  afifulavits  which  make  owi  primn  facie  a  case  of  fraud.  This  practice 
has  the  sanction  of  the  case  of  Faher  vs.  Zyhtra,  (2  Bay,  147.  But  it 
does  not  follow  that  because  this  is  the  usual  and  general  rule,  that  it  is  so 
5,;gg-|  inflexible  *as  to  admit  of  no  exception.  Like  every  other  rule  of 
-J  practice,  it  is  intended  to  aid  the  parties  in  getting  properly  before 
the  Court.  But  after  they  are  at  issue,  there  can  be  no  ground  to  say 
it  ought  any  longer  to  have  application.  The  object  of  the  affidavits  is 
to  justify  the  Court  in  calling  for  the  aid  of  the  jury  to  say  whether  the 
prisoner's  oath  is  true.  If  without  affidavits  the  plaintiff  make  charge 
by  suggestion,  and  the  defendant  pleads,  he  waives  the  right  to  call  for 
affidavits  ;  he  admits  by  his  plea  there  is  something  to  be  tried  by  a  jury. 
It  cannot  alter  this  view  that  the  issue  was  made  up  under  the  order  of 
the  Judge  ;  indeed,  it  strengthens  the  case  for  the  plaintifts.  For  it 
is  not  to  be  presumed,  that  the  Judge  would,  without  any  cause,  order 
such  proceedings.  The  great  end  of  the  insolvent  debtors'  Act  is 
answered  by  a  liljeration  of  the  prisoner,  if  his  oath  be  true,  at  the  terra 
of  tiic  Court  to  whicii  he  a})plies.  If  the  issue  charging  fraud  was  made 
up  and  ready  to  be  tried,  all  the  ends  of  justice  would  have  been 
answered  by  its  trial.  They  are,  however,  wholly  subverted  by  quashing 
that  issue,  and  discharging  the  defendant,  because  a  requisite  preceding 
the  filing  of  the  suggestion  had  not  been  complied  with. 

(a)  4  Stat.  5G.     An. 


*68]  Ex  parte  biggers.  45 

The  motion  to  reverse  the  decision  of  the  Judge  below  is  granted. 
lliciiAiiDSON,  Earle,  Butler,  JJ.,  concurred  :  Evans   and  Gantt 
absent. 

Griffin  and  Burt,  for  the  motion.     Carroll,  contra. 

See  Rice,   2G8.     1  Rich.  3.     6  Rich.  293.     3  Strob.  365.     Ex  parte  Moffitt,  11 
Rich.  3G0. 


"^Ex  parte  James  Biggers.  [*69 

By  the  Act  of  1833,  courts  martial  have  the  power  to  try  captains  of  patrol  for 
neglect  of  duty  as  patrols,  and  impose  the  fine  of  twenty  dollars,  specified  in 
the  Act  of  1819,  for  the  non-performance  of  patrol  duty,  and  no  other  Court  has 
cognizance  of  the  matter. 

Courts  military,  or  courts  martial,  are  a  part  of  the  law  of  the  land,  within  the 
meaning  of  the  constitution  and  of  magna  charta ;  and  fonn  the  most  appropriate 
tribunal  for  all  that  class  of  oflTences  which  is  created  by  the  jjatrol  laws,  so 
inseparably  connected  with  the  laws  regulating  the  militia. 

A  captain  of  patrol  failing  to  make  a  return,  on  oath,  is  guilty  of  a  neglect  of  duty, 
and  may  be  returned  to  the  Court  as  such. 

The  Act  of  1837,  does  not  confer  any  new  power,  but  is  merely  declaratory  of  the 
meaning  of  the  Act  of  1833.     It  is  more  explicit,  but  not  more  potential. 

Before  Butler,  J.,  at  York,  Spring  Term,  1840. 

This  was  a  suggestion  for  a  prohibition  to  restrain  the  collection  of  a 
patrol  fine.  The  facts  set  forth  in  the  suggestion  were,  that  James 
Biggers  had  been  appointed  captain  of  a  patrol  company,  and  had  per- 
formed his  duty  in  all  respects,  except  in  making  a  return  on  oath  of  his 
actings.  That  he  was  summoned  to  attend  a  court  martial,  and  fined 
twenty  dollars.  That  he  pleaded  to  the  jurisdiction  of  the  court,  on  the 
ground  that  the  fine  of  twenty  dollars  imposed  on  a  captain  of  a  patrol 
company,  for  failing  to  make  a  return,  was  to  be  recovered  in  a  particular 
manner  specified  in  the  Act  of  the  Legislature  by  indictment.  The  case 
came  on  for  trial  before  Butler,  J.,  who  delivered  the  following  opinion  : 
"  I  refuse  the  motion  for  a  writ  of  prohibition  in  this  case.  13y  the  Act 
of  1819,  (Mil.  Laws,  103,  sec.  10,)  (o)  it  is  made  the  duty  of  captains  of 
patrols  to  return  on  oath  the  performance  of  their  duties  to  the  captain 
of  the  beat  company,  under  a  penally  of  twenty  dollars,  to  be  recovered 
in  a  court  of  sessions.  By  the  Act  of  1833,  sec.  29,  p.  147,  (6)  juris- 
diction is  given  to  courts  martial  to  try  all  defaulters  therein  enumerated, 
for  non-performance  or  violation  of  any  duty  required  by  law,  and  also 
for  non-performance  of  patrol  duty.  The  Court  has  not  only  power  to 
try  defaulters  for  non-performance  of  duty  at  muster,  but  for  non-per- 
formance of  any  other  duty  required  by  law,  enumerating  patrols  ;  and  it 
is  made  the  duty  of  the  captains  of  beat  companies  to  give  information 
to  courts  martial  of  all  neglect  of  the  duties  required  by  law  of  those 
under  their  command.  *Why  require  information  to  be  given  if  ^^^^ 
the  courts  have  no  jurisdiction  ?     To  fail  to  make  a  return  on  oath  ^ 

(a)  8  Stat.  540.     An.  (h)  8  Stat.  573.     An. 


46  COLUMBIA,    DECEMBER,    1840.      VOL.  I.  [*70 

hy  a  captain  of  patrol  is  a  neglect  of  duty,  and  may  be  returned  to  the 
court  as  such.  I  regard  the  Act  of  183T,(«)  as  but  declaratory  of  the 
meaning  of  the  Act  of  1833,  and  not  as  conferring  new  power.  It  is 
more  explicit,  but  not  more  potential. 

James  Bigjjers  appeals  from  the  order  of  his  Honor,  Judge  Butler,  refusing 
the  writ  of  prohibition,  on  the  following  grounds  : 

1.  Because,  under  the  Act  of  the  Legisktnre  passed  in  1833,  courts  martial 
have  no  right  to  impose  a  fine  of  twenty  dollars  on  the  captain  of  a  patrol  com- 
pany for  failing  to  make  a  return  on  oath  of  his  actings  and  doings. 

2.  Because,  under  no  Act  of  the  Legislature  have  courts  martial  the  right 
to  impose  a  fine  of  twenty  dollars  on  the  captain  of  a  patrol  company. 

3.  Because  the  court  martial  acted  without  jurisdiction,  aud  his  Honor 
should  have  granted  the  writ  of  prohibition. 

Curia,  per  Earle,  J.  The  question  is  upon  the  construction  of  the 
Act  of  1819,  {b)  concerning  the  performance  of  patrol  duty,  and  of  1833, 
to  ])rovide  for  the  military  organization  of  the  State  ;  and  although  the 
Act  of  1837  has  made  it  certain  that  no  such  case  can  arise  again,  yet  as 
the  relator  complains  of  having  been  subjected  to  a  mode  of  trial,  under 
the  Act  of  1833,  which  was  unlawful,  it  becomes  necessary  to  inquire  if 
the  court  martial  had  rightful  jurisdiction.  The  Act  of  1819  concerning 
the  performance  of  patrol  duty,  requires  the  commanding  officer  of 
every  beat  company,  at  every  regular  petty  muster,  to  prick  off  from 
the  roll  of  each  patrol  district  any  number  of  persons,  at  his  discretion, 
to  perform  patrol  duty  until  the  next  regular  petty  muster  ;  and  shall 
appoint  some  prudent  and  discreet  person  as  commander  ;  and  in  case 
either  shall  fail  to  perform  the  duty  required,  imposes  a  penalty  of  thirty 
dollars,  to  be  recovered  by  indictment.  Another  section  provides  that 
each  captain  of  patrol  shall  make  a  return,  upon  oath,  of  the  performance 
of  his  duties  as  commander  of  the  patrol,  to  the  captain  of  the  beat 
company,  at  the  regular  times  required  by  the  Act,  under  the  penalty  of 
twenty  dollars,  to  be  recovered  by  indictment. 

^hi-1  *13y  the  Act  of  1833,  to  provide  for  the  military  organization  of 
-I  the  State,  it  is  alleged  that  a  different  tribunal  has  been  provided 
for  the  trial  of  defaulters  in  relation  to  patrol  duty  ;  and  to  understand 
the  question,  as  well  as  the  solution  of  it,  reference  must  be  made  to  the 
words  of  the  Act,  "  Sec.  3(3,  Each  colonel  of  a  regiment  shall  have  power 
to  order  courts  martial,  for  the  trial  of  all  officers  under  his  comfiand, 
except  field  officers,  to  consist  of  not  less  than  five  nor  more  than  thirteen 
officers,  one  of  whom  shall  be  a  field  officer.  And  it  shall  be  his  duty  to 
detail  courts  martial,  to  consist  of  at  least  three  commissioned  officers, 
who  shall  meet,  &c.,  to  try  all  defaulters  at  company,  battalion  or  regi- 
mental musters  ;  and  all  non-commissioned  officers,  privates  or  fatigue 
men,  for  the  non-performance  or  violation  of  any  duty  required  by  law, 
as  well  as  for  disobedience  of  orders,  and  for  non-performance  of 
patrol  duty,"  The  argument  in  behalf  of  the  relator  is,  that  in  as 
mucli  as  the  particular  default  charged  against  him  is  not  enumerated 
amongst  the  subjects  of  jurisdiction  assigned  to  the  courts  martial,  the 
mode  of  proceeding  by  indictment  under  the  Act  of  1819  is  not  taken 
away.     J>ut  it  should  be  kept  in  mind,  in  construing  these  Acts,  that 

(a)  8-Htat,  .W3,  §  10.     An.  (6)  8  Stat.  538,     An. 


*71]  Expirte  btggees.  47 

the  system  of  patrol  duty  has  been  engrafted  upon,  and  forms  part  of, 
the  militia  system  ;  and  although  in  point  of  fact  the  duties  are  appa- 
rently very  dissimilar  in  their  character  and  objects,  and  those  of  the 
patrol  seem  to  belong  to  the  citizen  rather  than  the  soldier,  yet  the 
system  of  patrol  has  always  in  this  State  been  regarded  as  a  military 
police,  and  to  be  an  appendage  of  tlie  militia  organization.  The  patrol 
districts  are  to  be  laid  off  within  the  beat  companies,  by  the  captains, 
who  are  required  to  make  and  keep  a  roll  of  persons  liable  in  each 
district  to  perform  patrol  duty  ;  and  at  every  7'egula7'  petty  muster,  to 
prick  off  those  who  shall  perform  the  duty  until  the  next  muster  ; 
and  the  7th,  8th  and  9th  sections  enact  certain  penalties  on  the  patrol 
men  for  neglect  of  duty,  to  be  imposed  by  the  company  courts  martial. 
It  seems  to  have  been  a  departure  from  the  spirit  of  the  Act  to  proceed 
by  indictment  against  the  captain  of  the  beat  for  not  appointing  the 
patrol,  or  the  captain  of  the  patrol  for  not  performing  the  duty  required. 
And  when  we  come  to  examine  the  Act  of  1833,  on  the  jurisdiction  of 
courts  martial,  it  will  seem  I'easonable  to  conclude  that  the  purpose  of 
the  Legislature  was  to  produce  *entire  uniformity  in  the  system,  by  r;),^^ 
subjecting  all  who  were  required  to  perform  any  duty  in  relation  to  L 
the  patrol  to  the  same  species  of  military  cognizance.  There  can  be  no 
reason  why  a  private  patrol  man  sliould  be  tried  by  a  court  martial,  for 
•disobedience  of  orders  or  neglect  of  duty,  and  his  captain  of  patrol  should 
be  tried  by  indictment,  for  not  turning  out  once  a  fortnight,  or  for  not 
making  his  return  at  the  next  company  muster.  The  terms  of  the  Act  of 
1833  are  abundantly  comprehensive — "to  try  all  defaulters  at  company, 
battalion,  or  regimental  musters;  and  all  non-commissioned  officers, 
privates  or  fatigue  men,  for  the  non-performance  of  any  duty  required  by 
law,  as  well  as  for  disobedience  of  orders,  and  for  non-performance  of 
patrol  duty. "(a)  The  captain  of  patrol  is  required  to  make  his  return  on 
oath,  at  the  regular  company  muster  ;  and  whether  he  be  styled  non-com- 
missioned officer  or  private,  he  has  been  guilty  of  a  default  at  a  company 
muster,  has  failed  to  perform  a  duty  required  of  him  by  law,  in  relation 
to  the  patrol,  and  comes  within  the  class  of  persons  subject  to  the  juris- 
diction of  company  courts  martial.  That  this  is  more  explicitly  declared 
by  the  10th  section  of  the  Act  of  1837,  does  not  weaken  the  view  taken 
by  the  Judge  below,  or  by  the  Court  here.  It  was  doubtless  intended 
to  remove  doubts  which  might  arise  on  the  former  Acts  ;  declaratory 
only  of  what  the  intention  of  the  Legislature  was.  The  leaning  of  Courts 
is  to  extend  and  sustain  the  right  of  trial  by  jury  ;  but  it  should  not  be 
forgotten  that  courts  military,  or  courts  martial,  are  also  a  part  of  the 
law  of  the  land  within  the  meaning  of  the  constitution  and  of  magna 
charta,  and  form  the  most  appropriate  tribunal  for  all  that  class  of 
offences  which  is  created  by  the  patrol  laws,  so  inseparably  connected 
with  the  laws  regulating  the  militia. 

The  judgment  of  the  Court  below  is  afBrmed. 

G.VNTT,  Richardson,  Evans  and  Butler,  JJ.,  concurred  :  O'Xeall, 
J.,  dissented. 

Williams,  for  the  motion.      Alston,  contra. 

(a)  Post,  502. 

(i)  See  Act  of  1839,  11  Stat.  Gl.     An. 


4:8  COLUMBIA,    DECEMBER,    1840.      VOL.  I.  [*73 

*73]  *KERsnAW  &  GiLLMAN  VS.  R.  Starnes. 

The  same  "    M.  Latham. 

The  same  "    S.  Smith. 

The  same  "    G.  W.  Davis. 

The  same  "    C.  Timberlake. 

The  same  "    J  Willson. 

A  survejor  acting  under  a  rule  of  Court  cannot  be  allowed  for  his  representation 
of  separate  tracts,  on  his  plat,  when  they  are  no  part  of  the  land  claimed  by 
the  parties,  and  are  merely  put  down  on  the  plat  as  boundaries  or  evidences 
of  the  identity  of  the  location.  He  is  only  entitled  to  pay  for  one  plat.  But 
where  the  plaintiffs  claim  under  two  grants,  and  both  are  represented  on  the 
same  paper,  and  also  a  grant  or  grants  conflicting  with  those  upon  which  the 
defendants  rely,  for  each  of  these  the  surveyor  may  be  allowed  to  charge. 

"Where  there  are  severul  cases,  all  depending  upon  the  same  location,  the  surveyor 
is  only  entitled  to  pay  for  one  plat. 

Before  Evans,  J.,  at  York,  Fall  Term,  1840. 

Judge's  order  made  on  circuit. 

These  were  actions  of  trespass  to  try  title.  There  was  a  verdict  for 
the  plaintiffs  in  the  two  first  cases,  and  for  the  defendants  in  the  other 
cases. 

Both  parties  have  appealed  from  the  clerk's  taxation  of  costs,  and  I 
am  to  decide  whether  the  taxation  allowed  by  the  clerk  is  right.  I  will 
consider,  first,  the  defendanW  excepliona  to  the  clerk's  taxation. 

The  first  ground  sustains  the  general  rule  that  costs  are  allowed  only 
for  services  actually  rendered.  The  commission  issued  in  the  case  of 
Starnes.     It  can  be  taxed  only  in  that  case. 

The  second  exception  is  also  sustained.  It  appears  from  the  clerk's 
report  that  the  surveyor,  Campbell,  was  employed  only  seventeen  days  in 
making  the  survey  in  all  the  cases.  The  fee  bill  of  1791(a)  says,  the 
surveyor  shall  be  allowed,  whilst  on  the  survey,  fourteen  shillings  per 
day.  The  surveyor,  although  appointed  by  the  Court,  is  the  surveyor  of 
the  party..  The  party  for  whom  he  acts  is  bound  to  pay  him  at  the  rate 
of  fourteen  shillings  per  day  whilst  employed  in  his  service,  and  if  he 
succeed  in  the  case  may  tax  as  his  costs  such  sum  as  he  has  paid  or  is 
liable  to  pay  to  his  surveyor.  Campbell  could  not  charge  the  plaintiffs 
more  than  three  dollars  per  day  for  every  day  he  was  on  the  survey.  In 
^-.-|  these  cases  the  plaintiff  ^recovered  against  two  of  these  defendants, 
-'  and  is  entitled  to  tax  his  surveyor's  costs  against  them.  But  as  the 
survey  was  made  for  both  cases,  he  cannot  tax  the  whole  amount  against 
cacli,  but  must  tax  it  against  one,  or  half  against  each.  This  disposes 
of  the  third  and  fourth  grounds. 

5.  The  surveyor  is  allowed  for  a  plat  of  the  land  in  dispute.  On  this 
plat  he  should  represent  every  thing  necessary  to  explain  it.  The  rep- 
resentations of  surrounding  lands  are  but  explanations  or  representations 
of  what  is  necessary  to  the  understanding  of  the  dispute  between  the 
parties.  I  am  of  oi)inion,  therefore,  the  exception  must  be  sustained. 
The  surveyor  is  entitled  to  only  one  plat  in  each  case. 

(a)  5  Stat.  154. 


*74]  KERSHAW   &   GILMAN   VS.   STARNES,  ET  AL.  49 

I  think  the  Clerk  should  have  allowed  the  charge  for  the  chain  carriers. 
It  was  an  incidental  and  necessary  expense. 

Second.  Plaintiffs''  Exceptions. — I  am  of  opinion  the  first  objection 
must  be  overruled.  The  fee  bill  of  1827(rf)  allows  the  attorney  for  a 
commission  or  cross  interrogatories  eight  dollars.  And  if,  as  I  under- 
stand, each  defendant  put  in  cross  interrogatories,  he  is  entitled  to  his 
costs.  The  plaintiffs'  second,  third  and  fourth  exceptions  relate  to  the 
surveyor's  cost,  and  must  be  governed  by  the  same  rules  as  the  defen- 
dants'. 

Ordered,  that  the  clerk  do  reform  his  taxation  according  to  the  prin- 
ciples stated  above. 

The  plaintiff's  appeal  from,  and  move  to  reverse  the  decision  of  his  Honor, 
Judge  Evans,  on  the  following  grounds  : 

1.  Because  in  sustaining  the  defendants'  second  exception,  he  erred  in  not 
allowing  the  surveyor  his  per  diem  pay  in  each  case  in  which  the  plaintiffs 
succeeded. 

3.  Because  he  should  have  allowed  the  surveyor  ten  shillings,  not  only  for 
the  general  plat  in  the  case,  but  also  for  each  representation  of  surrounding 
lands,  which  were  the  subject  of  grants  or  conveyances,  they  being  necessary 
to  explain  the  plaintiffs'  location. 

Curia,  per  Evans,  J.  This  is  a  question  of  costs,  and  must  be  de- 
cided by  the  fee  bill.  It  is  said  the  plaintiffs'  land  could  only  be  located 
by  the  surrounding  tracts,  and  that  therefore  the  location  and  delineation 
of  these  on  the  plat  was  indispensable  to  the  understanding  of  the  plain- 
tiffs' claim  :  accordingly,  the  surveyor  has  represented  and  laid  down  on 
his  plat  *all  these  surrounding  tracts,  as  well  as  those  under  which  r-j^np^ 
the  parties  claimed.  For  each  of  these  tracts  of  land  the  surveyor  L 
clairns  to  be  allowed  ten  shillings,  and  the  question  submitted  to  this 
Court  is,  whether  such  allowance  is  consistent  with  the  fee  bill.  The 
Avords  of  the  fee  bill  of  1791  are,  "for  making  out  a  fair  plat,  certify- 
ing, signing  and' returning  the  same,  ten  shillings  "  The  rule  of  Court 
in  this,  as  in  other  cases,  I  presume,  required  the  surveyor  to  survey  the 
land  in  dispute  between  the  parties,  and  to  return  a  plat  thereof  to  the 
Court,  The  plat  which  he  is  required  to  make  is  a  representation  of 
the  disputed  land.  The  boundaries,  whether  they  be  marked  trees, 
water  courses,  or  surrounding  tracts  of  land,  are  but  component  parts  of 
the  plat  he  is  required  to  make.  They  are  but  the  evidences  of  the  iden- 
tity of  the  laud  claimed  ;  and  I  can  see  no  more  reason  for  allowing 
additional  compensation  where  the  boundary  is  an  adjoining  survey,  than 
where  it  is  a  river  or  creek,  or  any  other  natural  or  artificial  boundary. 
It  is  his  duty  to  search  out  the  lines  of  the  land,  and  when  he  has  done 
so  and  fixed  the  location,  to  return  a  plat  thereof  to  the  Court.  For 
searching  for  the  lines  he  is  allowed  three  dollars  a  day,  and  for  a  plat  of 
the  land  he  is  allowed  ten  shillings.  Every  thing  beyond  the  representa- 
tion of  the  land  in  dispute  is  inserted  as  the  evidences  of  identity.  If 
the  boundary  be  identified  by  marked  trees,  he  puts  them  down  on  the 
plat  ;  if  by  a  river,  he  does  the  same  ;  and  if  by  the  adjoining  survey, 
he  represents  that  on  his  plat ;  but  these  are  put  down  only  as  evidences 
of  the  identity  and  true  location  of  the  land.    They  are  component  parts 

(a)  6  Stat.  333.     An. 
YoL.  I.  .-5 


50  COLUMBIA,    DECEMBER,    1840.      VOL.  I.  [*'i5 

of  the  plat,  but  all  put  together  make  but  a  plat  of  the  land.  For  these 
reasons,  I  am  of  opinion  that  the  surveyor  cannot  be  allowed  for  those 
separate  tracts  represented  on  the  plat,  which  was  no  part  of  the  land 
claimed  by  the  parties,  and  put  down  on  the  plat  only  as  boundaries  or 
evidences  of  identity.  In  these  cases  the  plaintiffs  claim  under  two  grants. 
These  are  both  represented  on  the  same  paper,  and  also  a  grant  or  grants 
conflicting  with  those  upon  which  the  defendants  rely.  For  each  of 
these  I  am  of  opinion  the  surveyor  may  be  allowed  to  charge.  Such 
seems  to  have  been  the  opinion  of  the  Court  in  the  case  of  Stiirgenecker 
vs.  Marsh,  (1  Bail.  Rep.  592.)  Upon  reconsideration,  I  think  the  cir- 
cuit decision  made  by  myself,  allowing  the  surveyor  ten  shillings  as  for 
;,.,„-,  one  plat  in  each  of  the  cases,  was  *wrong  ;  and  the  taxation  of  the 
-^  cost  must  be  reformed  by  the  Clerk  accordingly. 
The  motion  is  dismissed  as  to  the  other  ground. 

The  whole  Court  concurred. 

Allston,  for  the  motion.      Williams,  contra. 


E.  Carson  vs.  W.  Hill  and  T.  F,  Jones. 

A  blank  note  signed  by  a  firm,  with,  sureties  thereto,  and  by  one  of  the  firm  placed 
in  the  hands  of  the  plaintiff,  a  factor  in  Charleston,  as  collateral  security  for 
acceptances  of  drafts,  to  be  drawn  on  him  by  the  fii-m,  and  afterwards  filled  up 
in  good  faith  by  the  plaintiff,  in  accordance  with  his  instructions,  with  the  sum 
of  $5000,  the  sum  agreed  on  by  them  at  the  time  the  note  was  left,  was  held  not 
*to  be  void,  and  that  the  plaintiff  had  the  same  right  that  an  endorsee  would 
have  to  fill  up  the  tenns  of  an  endorsement  above  the  name  of  his  endorser-  («) 

The  plaintiff,  after  he  accepted  drafts  drawn  by  the  firm,  to  the  amount  of  $7,500, 
acquired  as  perfect  a  right  to  the  note  as  if  he  had  bought-it ;  and  his  right 
could  only  be  divested,  and  the  defendants'  liabilities  discharged,  by  j)ayment. 

All  the  payers  to  a  joint  and  several  promissory  note  are  principals,  and  their 
relation  to  each  other  does  not  affect  their  liability  to  the  payee. 

Where  a  guaranty  is  absolute  in  its  teims,  and  definite  as  to  its  amount  and  extent, 
in  such  case  no  notice  to  the  guarantor  is  necessary. 

Where  a  debtor  does  not  direct  the  application  of  money  paid  to  any  specific 
demand,  where  there  are  two  or  more,  the  creditor  who  receives  the  mioney  may 
make  liis  own  application.  (/) 

Tlie  .surety  is  Ixmnd  by  the  terms  of  the  contract,  and  cannot  be  discharged  unless 
the  principal  varies  the  terms  of  the  original  contract,  by  enlarging  the  time  of 
performance.  (</) 

Before  Butler,  J.,  at  Laurens,  Fall  Terra,  1840. 

This  was  an  action  of  assumpsit,  on  a  joint  and  several  promissory 

^^>^-,  note,  signed  by  the  defendants.     Wm.  Hill  was  *out  of  the  State 

at  the  commencement  of  the  action — Davis  had  suffered  judgment 

to  go  agaiiirft  him  by  default,  and  the  defendants  Wiley  Hill  and  Jones, 

were  the  real  parties  to  the  issue.     The  manner  in  which  the  note  was 

(«)  Cited  G  Rich.  .507.     3  Rich.  113.     An.  (/)  See  11  Rich.  468.     An. 

(g)  See  Comwell  vs.  Holli/,  5  Rich.  .56.      Wmpie  vs.  Kirby,  2  Bail.  551.     Pickett 
vs.  Lands,  2  Bail.  608.     4  «trob.  20,  90.     1  Bail.  418.     Post.  145.     An. 


*77]  CARSON    VS.    niLL    &    JONES.  51 

signed  filled  up  and  used,  is  important,  and  will  appear  from  the  follow- 
ing statement :  William  Hill  and  W.  Gr.  Davis  had  entered  into  a  mer- 
cantile copartnership,  and  were  doing  business  under  the  firm  of  Davis  & 
Hill,  at  Laurens,  during  the  year  1835.  They  had  contracted  debts  in 
Charleston,  to  a  large  amount ;  and  not  having  cash  in  hand  to  meet 
them,  in  1836,  when  they  fell  due,  they  procured  the  note  upon  which 
this  action  is  brought,  to  be  signed  by  Wiley  Hill  and  Thomas  F.  Jones, 
below  their  own  names,  in  blank,  with  $5000  inserted  at  the  top  of  the 
paper.  The  paper  was  then  signed  in  March,  1836,  and  delivered  to 
William  Hill,  to  be  used  by  him  in  Charleston  as  he  might  thiid<  proper. 
Without  filling  up  the  body  of  the  note.  Hill  deposited  it  with  the  plain- 
tiff, as  collateral  security,  to  indemnify  him,  for  acceptances  of  drafts  to 
be  drawn  on  him  by  Davis  &  Hill  in  favor  of  their  creditors,  from  whom 
they  had  purchased  goods  in  Charleston.  Carson  accepted  drafts  to  the 
amount  of  about  $7000,  on  the  faith  of  the  paper  which  he  held  in  blank. 
These  drafts  fell  due  six  month  after  their  date.  Besides  these  drafts, 
Carson  advanced,  during  the  years  1836,  1837,  and  1838,  other  large 
suras  of  money  for  Hill  and  Davis,  and  for  Davis  alone,  who  was  the 
active  partner,  at  Laurens,  not  only  to  close  the  concern,  but  in  conduct- 
ing business  on  his  own  account.  The  drafts  drawn  by  Hill  &  Davis  on 
the  plaintiff,  fell  due  on  the  1st  September,  1836,  at  which  date  the  de- 
fendant filled  up  the  note  in  the  terms  of  an  ordinary  joint  and  several 
note  of  $5000,  payable  six  month  after  date.  After  it  was  thus  filled  up, 
Carson  deposited  it  with  Martin  &  Walter,  as  collateral  security  to  cover 
liabilities  which  Carson  was  under  to  them.  It  remained  with  Martin 
and  Walter  until  it  was  taken  away  by  plaintiff  and  sent  up  to  be  sued 
on,  which  was  in  1839.  Some  time  in  1838  Carson  wrote  to  Davis  to 
Inform  him  he  would  put  the  note  in  suit ;  Davis  requested  him  to  delay 
suit,  that  he  might  make  some  arrangements  to  pay  the  note  himself,  and 
the  plaintiff  did  delay  and  give  him  and  the  others  time  till  suit  brought. 
Just  before  the  suit  was  brought,  David  Martin,  as  the  agent  of  plaintiff, 
presented  the  note  to  ^defendant.  Jones  expressed  great  surprise  that  r*(,q 
the  note  had  not  been  paid  long  ago  ;  said  he  knew  Carson  had  such  a  •- 
note,  but  supposed  it  had  been  paid  long  ago.  Afterwards  Jones  wrote 
to  Carson,  requesting  him  to  let  him  know  the  amount  of  the  note  and 
the  payments  on  it.  The  other  defendant,  Wiley  Hill,  said  when  the 
note  was  presented,  that  he  thought  it  had  been  paid  ;  but  did  not  say 
that  he  knew  that  Carson  had  such  a  note,  but  acknowledged  that  be 
had  signed  a  note  in  blank  for  $5000,  which  was  delivered  to  William 
Hill. 

It  appeared  very  satisfactorily,  that  the  note  had  been  placed  with  Car- 
son as  collateral  security,  to  cover  his  liability  for  drafts  accepted  on 
account  of  Davis  &  Hill,  and  that  he  filled  it  up  in  the  absence  of  all  the 
parties ;  and  gave  the  defendants  notice  of  the  existence  of  the  note  just 
before  it  was  sued  on.  During  the  years  1836,  1837,  1838,  and  1839, 
Davis  remitted  large  sums  of  money  at  different  times  to  Carson,  to 
enable  him  to  meet  the  engagements  which  he  had  incurred  on  account  of 
Hill  &  Davis,  and  on  Davis'  individual  account.  The  account  cui'rent 
presents  a  fair  statement  of  the  accounts  ;  when  Davis  remitted  the  money, 
he  gave  Carson  no  particular  instructions  as  to  its  application,  but  left 
it  to  Carson  to  apply  the  credits  as  he  pleased.    After  striking  a  balance 


52  COLUMBIA,    DECEMBER,    1840.       VOL    I.  [**8 

of  all  the  accounts  between  Carson  &  Davis,  Carson  states  that  Davis  was 
indebted  to  him  $3728,  which  sum  he  contended  he  had  a  riglit  to  recover 
against  the  defendants  on  this  note  He  placed  the  credits  to  the  general 
accounts  as  he  received  the  money,  without  regard  to  any  specific  demand. 
At  the  end  of  the  year  1836,  or  rather  on  the  first  of  March,  1837, 
the  balance  against  Davis  was  $4'784  73  cents.  In  January,  1838,  the 
balance  was  $2669  ;  and  in  1839,  January,  the  balance  was  $3728.  The 
accounts  will  explain  themselves.  There  are  two  items  in  them  which 
deserve  particular  notice.  One  is  a  note  of  Davis  &  Hill,  for  $3000, 
indorsed  by  Elijah  Carson,  discounted  in  the  Bank  of  South  Carolina,  on 
the  15th  September,  1836  Nett  amount  after  discount,  $2959.  The 
other  was  a  note  of  Davis  &  Hill,  for  $3219,  discount  taken  off,  $3184, 
indorsed  by  James  S.  Rogers  first,  and  Elijah  Carson,  datei  March  18th, 
1837,  and  payable  to  the  Planters'  and  Mechanics'  Bank.  Those  two 
notes  were  sent  down  by  Davis,  from  Laurens,  and  were  endorsed  for  the 
5^Hq-i  accommodation  of  Davis  &  Hill  Carson  credited  at  the  time 
-'  above  stated,  these  sums  to  Davis ;  but  when  they  became  due,  he 
paid  the  renewals  himself,  and  entered  the  sums  thus  paid  to  the  debit  of 
Davis.  Carson  then  paid  off  entirely  the  note  to  the  Bank  of  South 
Carolina ;  so  that  the  amount  of  it  stands  both  on  the  debit  and  credit 
side  of  the  account,  swelling  both,  but  making  little  difference,  ultimately, 
as  to  the  balance.  The  note  to  the  Planters'  and  Mechanics'  Bank  was 
paid  off  at  different  times  of  its  renewal,  to  about  $1100.  This  last  sum 
Carson  does  not  charge  against  the  defendants,  but  against  Rogers,  the 
first  endorser.  The  sums  actually  paid  by  him  are  entered  in  the  account ; 
he  charged  to  the  defendants,  for  whose  accommodation  the  note  was 
executed. 

There  are  other  facts  which  may  be  regarded  as  connected  with  the 
justice  of  this  case,  which  perhaps  should  be  stated.  In  the  spring  of 
1836,  after  his  return  from  Charleston,  Wra.  Hill  went  to  Mississippi,  as 
it  was  supposed  to  speculate  in  lands.  In  the  fall  of  1837  he  left  this 
State  and  went  to  Mississippi,  where  he  has  remained  ever  since.  After 
Hill  left  here,  the  stock  of  goods  remaining  at  Laurens  were  packed  up 
by  Davis  and  sent  to  Mobile  for  Hill,  by  the  way  of  Charleston,  Carson 
receiving  and  forwarding  the  goods  for  the  parties.  He  paid  the  freight 
and  charged  the  amount  to  Davis — I  think  about  $160.  From  this  fact, 
as  well  as  others,  it  was  certain  that  he  knew  that  Hill  had  removed  to 
Mississippi. 

As  I  have  not  been  furnished  with  the  grounds  of  appeal,  I  do  not 
deem  it  important  that  I  should  enter  particularly  into  the  details  of  my 
charge  to  the  jury.  Tiie  jury  found  for  the  plaintiff,  under  my  instruc- 
tions, and  if  I  was  in  error  as  to  one  of  the  many  questions  raised  on  the 
circuit,  1  am  willing  that  defendant's  counsel  should  avail  themselves  of 
any  advantage  of  it.  I  felt  great  doubts  as  to  some  of  the  questions  at 
the  time  ;  more  particularly  as  to  the  credit  of  the  proceeds  of  the  note 
discounted  in  the  Planters'  and  Mechanics'  Bank,  with  Kogers'  name  as 
first  endorser  on  it.  I  held  in  efi'ect  that  the  note  was  good,  although  it 
was  not  filled  up  till  it  got  into  Carson's  hands— that  the  plaintiff  Iiad 
acfpiired  a  right  to  it,  when  he  advanced  money  equal  to  its  amount. 
That  having  no  specific  instructions  from  Davis,  the  plaintiff  had  a  right 


*79]  CARSON    VS.   HILL    &   JONES.  53 

to  keep  the  accounts  and  place  the  credits  as  he  *raight  think  (-^(cqa 
proper.  That  he  had  not  lost  his  right  to  recover  on  the  note,  by  L 
waiting  with  Davis,  or  by  not  giving  notice  to  all  the  makers  of  their 
liability ;  and  that  the  sums  raised  on  the  notes  discounted,  were  received 
on  accommodation  paper,  for  the  bene6t  of  Davis  &  Hill ;  and  that  the 
money  afterwards  paid  by  plaintiff  in  discharge  of  the  notes,  was  properly 
set  off,  on  the  debit  sides,  to  the  credits  which  had  been  entered. 

CROUNDS    OF    APPEAL. 

1.  Because  his  Honor  charged  the  jury  that  the  plaintiff  was  entitled  to 
recover,  notwithstanding  the  paper  sued  on  was  signed  in  blank,  and  filled  up 
by  the  plaintiff,  in  the  absence  of"  all  the  makers,  near  six  months  after  its  exe- 
cution, without  the  consent  or  knowledge  of  the  defendants,  and  without  giving 
notice  thereof  to  them,  until  just  before  the  commencement  of  the  suit. 

2.  Because  the  paper  sued  on  was  signed  in  blank,  and  delivered  to  the 
plaintiff  to  be  held  as  collateral  security  for  acceptances  to  be  made  by  him  for 
Hill  &  Davis,  and  he  was  not  authorized  to  fill  it  up  as  a  negotiable  paper  and 
an  unconditional  promise  to  pay. 

3.  Because  the  payments  made  by  Davis  to  the  plaintiff  should  have  been 
first  applied  to  the  discharge  of  the  exceptances,  to  secure  which  the  paper 
sued  on  was  delivered  to  the  plaintiff. 

4.  Because,  even  if  the  paper  sued  on  were  valid,  the  testimony  established 
the  payment  of  the  whole,  or  the  greater  part  thereof 

5.  Because  the  plaintiff  gave  indulgence  to  Hill  &  Davis,  the  principals,  and 
at  the  same  time  aided  them  in  removing  their  effects  from  the  State,  without 
giving  notice  to  the  defendants  that  he  held  them  liable  for  this  claim. 

6.  Because  his  Honor  charged  the  jury  that  the  proceeds  of  the  two  notes 
discounted  in  bank,  for  the  accommodation  of  Hill  &  Davis,  should  not  be  re- 
garded as  payments  of  the  acceptances  made  by  plaintiff  for  Hill  &  Davis. 

7.  Because  the  finding  of  the  jury  was  contrary  to  law  and  evidence. 

8.  Because  his  Honor  charged  the  jury  that  the  note  sued  on  could  not  be 
regarded  as  a  guaranty. 

*  Curia,  2^er  Butler,  J.  The  two  first  grounds  present  the  same  r-^,Q-, 
question,  to  wit:  was  the  note  void  because  it  was  left  with  Carson  ^ 
in  blank,  and  filled  up  by  him  in  the  absence  of  the  other  parties  to  it  ? 
Carson  acquired  his  possession,  control  and  right  to  the  note  from  William 
Hill,  who  was  acting  not  alone  by  derivative  authority  from  others,  but 
on  his  own  account  as  one  of  the  principals  to  the  note.  He  had  full 
authority  to  use  the  paper  as  he  might  think  proper.  The  note  was 
taken  and  filled  up  by  Hill's  express  authority  and  direction,  and  in  good 
faith,  for  the  purpose  agreed  on  between  himself  and  Carson.  The  latter 
had  the  assent  of  one  of  the  principals  to  fill  up  the  blank,  as  fully  as  an 
endorsee  has  the  authority  of  his  endorser  to  fill  up  the  terms  of  endorse- 
ment above  his  name  ;  which  was  nothing  more  than  making  the  note 
payable  to  and  negotiable  by  himself  for  the  amount  specified  by  all  the 
makers.  The  next  question  that  arises  is,  what  right  did  Carson  acquire 
to  the  note  upon  or  after  its  delivery  ?  Until  he  accepted  drafts  to  the 
amount  of  it,  he  had  no  right  to  or  control  over  it,  but  it  was  subject  to 
the  demand  of  the  depositor.  But  after  Carson  had  incurred  a  liability 
to  the  amount  of  $7500  for  Hill  &  Davis,  by  accepting  the  drafts  for 
that  sum,  he  acquired  as  perfect  a  right  to  the  note  as  if  he  had  bought 
it,  and  the  defendants  had  as  little  control  over  it  as  if  they  had  given  it 
absolutely  for  goods  sold  and  delivered.     From  that  time  Carson's  title 


54  COLUMBIA,    DECEMBER,    1840.      VOL.  I.  [*81 

eonld  not  be  divested,  nor  the  defendant's  liability  discharged,  without 
payment.  The  pledg-e,  or  collateral  security,  (call  it  what  you  may,)  had 
become  forfeited,  and  could  only  be  redeemed  by  the  payment  of  money 
equal  to  its  amount.  So  far  as  regarded  the  payee,  all  the  makers  were 
principals ;  although  as  between  themselves,  Jones  &  Wiley  Hill  were 
securities  of  the  other  two.  This  relation  between  the  makers  could  not 
affect  their  liability  to  Carson.  The  note  could  not  therefore  be  regarded 
in  the  light  of  a  guaranty  requiring  notice,  as  contended  for  by  the 
counsel.  Or  if  so,  it  would  be  an  absolute  guaranty  for  the  payment  of 
so  much  money,  which  would  impose  the  same  obligation  as  any  other 
unconditional  engagement  to  pay  money.  I  think  this  general  principle 
well  stated  in  the  case  of  Norton  vs.  Eastman,  (4  Greenleaf,  521,)  in 
which  it  was  said  by  the  Judge  who  delivered  the  judgment  of  the  Court, 
^QQ-|   "  it  seems  to  be  well  settled  that  where  a  guaranty  is  *absolute  in  its 

'"-'  terms,  and  definite  as  to  its  amount  and  extent,  in  such  case  no  no- 
tice to  the  guarantor  is  necessary  ;  the  very  act  of  the  party  in  giving  the 
guaranty  is  inseparably  connected  with  the  knowledge  of  its  nature  and 
limits,  "(ff)  Only  where  the  party  cannot  know  before  hand  whether  he 
is  to  be  ultimately  liable  or  not,  nor  to  what  extent,  is  it  necessary,  in 
order  to  charge  him,  that  he  should  have  reasonable  notice.  Here  Jones 
and  Wiley  Hiil  gave  William  Hill  power  to  make  them  absolutely  liable 
for  $5000,  without  condition  or  limitation.  By  the  understanding  of  the 
parties,  they  were  to  be  equally  liable,  and  to  the  same  extent  as  Hill  & 
Davis.  After  signing  the  paper,  their  ultimate  liability  was  fixed,  and 
they  should  have  guarded  themselves  by  their  own  vigilance,  and  not 
have  relied  on  notice  from  Carson,  who  had  given  credit  on  an  unquali- 
fied oljligation  to  pay  him,  should  the  drafts  not  be  paid. 

Having  come  to  the  conclusion  that  the  note  was  a  valid  obligation, 
and  that  the  defendants  were  liable  to  pay,  according  to  the  terms  of  the 
paper,  after  it  was  filled  up,  the  remaining  questions  arise  out  of  the 
application  and  the  extent  of  the  credits  wliicli  should  have  been  made 
by  Carson,  and  to  which  the  defendants  were  entitled,  by  the  sums  of 
money  remitted  by  Davis,  and  raised  by  Carson  on  the  notes  discounted 
in  the  banks.  If  the  money  remitted  in  cash  by  Davis  from  Laurens, 
had  been  applied  to  this  note,  or  to  the  drafts  accepted  on  its  faith,  then 
the  defendants  would  have  been  entirely  discharged.  Davis  &  Hill,  and 
Davis  alone,  owed,  beyond  the  amount  of  this  note,  large  sums,  for  which 
the  i)laintiff,  Carson,  had  no  security.  He  had  paid  and  advanced  money 
on  their  individual  responsibility.  From  the  manner  in  which  he  kept 
the  accounts,  he  applied  the  money  received  from  Davis  to  the  payment 
of  these  latter  demands.  Or  rather,  that  is  the  result — for  he  did  not 
apply  the  payments  to  the  extinguishment  of  the  specific  demand  covered 
by  the  note.  The  law  seems  to  be  clear  and  indisputable,  that  where  the 
debtor  does  not  direct  the  application  of  money  paid,  to  any  particular 
demand,  where  there  are  two  or  more,  the  creditor  who  receives  the  money 
may  make  his  own  applic  tion.  When  Davis  remitted  money  he  gave  no 
particular  direction  about  it;  but,  perliaps,  believing  he  could  pay  all 
*831  ^'*-'™'^"'^*^  against  him,  he  left  it  to  Carson  to  make  the  *api)lication  of 
the  credits  as  he  might  think  proper.    Carson  consulted  his  interest, 

(a)  See  Lawton  vs.  Maner,  9  Rich.  337.     An. 


^83] 


CARSON   VS.   HILL   &   JONES.  55 


and  applied  the  payments  to  the  more  insecure  debt.  And  this  we  think 
he  had  a  right  to  do  according  to  law,  if  he  acted  in  good  faith  and  with- 
out fraud  or  collusion  with  Davis,  of  which  there  was  not  even  a  suspicion. 
Allowiug  this  to  be  so,  still  the  defendants  insist  that  they  ought  not  to  be 
debited  with  the  sums  subsequently  paid  into  the  banks  by  Carson,  after 
he  had  received  and  given  Davis  credit  for  them.  That  is,  the  credit 
when  once  made,  was  absolute  and  beyond  Carson's  control.  And  that 
when  he  paid  the  money  into  bank,  after  protest,  he  could  not  debit  the 
amount  against  the  credit  previously  given.  It  is  admitted  that  the 
money  raised  on  the  notes  discounted,  was  drawn  on  accommodation 
paper  for  the  benefit  of  Hill  and  Davis  The  first  was  endorsed  by 
Carson  alone,  and  there  is  little  doubt  that  it  was  discounted  in 
bank  more  on  the  credit  of  his  name  than  those  of  Hill  and  Davis,  the 
makers.  This  being  the  case,  Carson  might  well  have  charged  them 
with  this  liability  at  the  time  he  gave  the  credit.  To  test  it,  suppose 
the  defendants,  or  either  of  them,  should  have  come  the  day  after  the 
credits  were  made,  and  demanded  the  note  upon  which  this  action  is 
brought,  could  they  have  obtained  it  without  relieving  Carson  from  his 
liability  to  the  bank  ?  I  think  they  could  not.  Justice  and  fair  dealing 
would  forbid  it.  And  if  they  could  get  the  note  without  paying  the 
amount  credited  to  it,  and  for  which  Carson  was  liable,  the  credit  would 
be  unavailing  to  them.  Carson  could  not  be  divested  of  his  title  to  the 
note  until  it  was  discharged  of  all  its  incumbrances  The  money,  there- 
fore, paid  to  the  South  Carolina  Bank  in  satisfaction  of  the  note  dis- 
counted in  it,  may  well  be  set  off  on  the  debit  side  of  the  account ;  the  debit 
neutralizing  the  credit ;  the  one  being  received,  and  the  other  paid,  for  Davis 
and  Hill,  by  Carson,  without  benefit  to  him,  beyond  commissions.  The 
money  raised  on  the  note  endorsed  by  Rogers,  must  be  regarded  in  the  same 
light.  [The  money  thus  raised  was  not  for  Rogers  or  Carson,  but  for  Davis 
and  Hill ;  and  when  Carson  paid  the  renewals  he  was  not  bound  to  look 
exclusively  to  Rogers  for  indemnity.  Davis  and  Hill  were  the  principals, 
and  Rogers  security,  as  between  themselves,  but  all  were  liable  to  Car- 
son ;  and  the  money  when  paid  was  for  the  real  and  ultimate  benefit  of 
the  makers  ;  and  they  having  got  credit  for  the  *money  received,  r^ijQ  i 
they  should  be  debited  with  it  when  paid.  Allowing  these  items  to  L 
be  just  debts  to  countervail  the  previous  credits,  the  balance,  as  struck 
by  Carson,  was  three  thousand  seven  hundred  and  twenty-eight  dollars, 
for  which  the  jury  were  instructed  to  find  their  verdict  with  interest. 
And  the  Court  is  satisfied  that  the  defendants  could  not,  at  any  time, 
have  redeemed  their  note  without  paying  this  sum.  The  verdict  was 
therefore  right,  and  cannot  be  set  aside  on  any  of  the  grounds  noticed. 

Another  ground  is  taken,  that  the  plaintiff  gave  indulgence  to  Hill 
and  Davis,  the  principals,  and  at  the  same  time  aided  them  in  remov- 
ing their  effects  from  the  State,  without  notice  to  defendants.  This  sug- 
gests the  inquiry,  what  indulgence  did  the  plaintiff  give,  and  for  what 
purpose  ?  The  plaintiff,  at  the  instance  of  one  of  the  defendants,  Davis, 
did  forbear  to  sue.  But  he  entered  into  no  obligatory  contract  for  for- 
bearance. There  was  no  contract  between  himself  and  Davis  that  would 
impose  any  impediment  to  his  suing  at  any  time  that  he  might  think 
proper.  He  gave  Davis  time ;  without  any  consideration  or  agreement, 
that  could  constitute  a  new  and  separate  contract  from  that  which  arose 


56  COLUMBIA,   DECEMBER,    1840.      VOL.  I.  [*84 

from  the  note  itself.  There  was  no  promise  to  indulge  or  forbear  which 
was  binding  on  the  creditor.  The  law  is  very  clear,  that  the  surety  is 
bound  by  the  terms  of  the  contract,  and  cannot  be  discharged  unless  the 
principal  varies  the  terms  of  the  original  contract,  by  enlarging  the  time 
of  performance.  (2  J.  C.  R.,  559.)  There  was  nothing  to  prevent 
Carson  from  suing  at  any  time,  by  virtue  of  any  agreement  which  he  had 
entered  into  with  Davis.  As  to  receiving  and  forwarding  the  goods  of 
Davis  and  Hill,  he  had  as  perfect  a  right  to  do  so,  as  of  any  other  cus- 
tomer in  good  credit.  He  certainly  had  no  authority  to  stop  them  for 
any  one,  much  less  for  Wiley  Hill  and  Jones,  who  lived  near  the  place 
from  which  they  were  transported.  He  acted  for  Hill  and  Davis  as  a 
mere  forwarding  agent,  and  cannot  be  held  responsible  for  not  interpos- 
ing to  attach  or  arrest  their  goods  for  the  benefit  of  others. 

We  cannot  perceive  any  grounds  to  grant  a  new  trial.     Motion  refused. 

Richardson,  O'Neal,  Evans,  and  Earle,  JJ.,  concurred  :  Gantt,  J., 
dissented. 

Irhy  and  Young,  for  the  motion.    Henry  and  Wardlaio,  contra. 


CASES    AT    LAW 

ARGUED  AND  DETERMINED  IN  THE 

COURT  OF  APPEALS  OF  SOUTH  CAROLINA. 

Charleston,  (februarg,  1841. 


JUDGES  PRESENT. 

HON.  RICHARD   GANTT,  HON.  BAYLIS   J.  EARLE, 

"      JOHN   S.  RICHARDSON,  "      JOSIAH   J.  EVANS, 

"      JOHN   BOLTON   O'NEALL,  "      ANDREW  PICKENS   BUTLER. 


M.  J.  BucKNER,  Ordinary,  vs.  Hugh  Archer  and  others. 

In  a  "suit  against  the  securities  of  an  administrator  upon  their  bond,  where  a 
decree  of  the  Ordinary  against  the  administrator  is  offered  in  evidence,  it  is  com- 
petent for  the  securities  to  show  that  the  administrator,  at  the  time  of  the 
decree,  had  removed  from  this  State  and  was  resident  in  another  ;  and  therefore 
was  not  subject  to  the  jurisdiction  of  the  Court. 

In  such  case,  it  is  not  competent  for  the  Ordinary  to  make  the  absent  administrator 
a  party  by  publication  in  the  Gazette,  and  the  securities  may  show  that  the 
Ordinary  proceeded  in  that  form,  altliough  the  decree  recites  that  the  adminis- 
trator was  duly  cited  and  made  default.  Such  recital  is  not  conclusive.  See 
Lesterjette,  Ordinary,  vs.  TTte  Ex' is.  of  Ford,  in  note. 

Before  Gantt,  J.,  at  Beaufort,  Spring  Term,  1837. 

This  was  an  action  of  debt  on  an  administration  bond,  against  the 
securities  of  Archer,  the  administrator.  A  decree  of  the  ordinary  against 
him  was  offered  in  evidence.  The  defendants  proposed  to  prove  that  at 
the  time  of  the  proceeding  before  the  ordinary.  Archer  had  removed  from 
the  State  and  was  resident  in  Florida;  and  that,  in  fact,  the  ordinary  had 
attempted  to  malve  him  a  party  by  publication  in  the  *gazette.  p^„„ 
But,  inasmuch  as  the  decree  recited  that  the  administrator  had  '- 
been  duly  cited,  and  made  default,  his  Honor  overruled  the  evidence,  and 
the  plaintiff'  obtained  a  verdict,  which  it  was  now  moved,  ou  the  part  of 
the  defendants,  to  set  aside,  and  for  a  new  trial. 

Cnria,  per  Earle,  J.  It  is  essential  to  the  validity  of  a  judgment, 
that  the  Court  should  have  jurisdiction  of  the  person  and  of  the  subject 
matter.  When  such  is  the  fact,  the  judgment  is  conclusive,  between  the 
same  parties,  and  those  in  privity  with  them,  upon  all  the  matters  in 


58  CHARLESTON,  FEBRUARr,  1841.       YOL.  I.  [^86 

controversy,  which  it  purports  to  have  decicled.  But  I  apprehend  the 
want  of  jurisdiction  may  be  set  up  against  a  judgment,  whenever  it  is 
^„^-|  *attempted  to  be  enforced,  as  a  new  and  substantive  cause  of  action, 

-J  or  where  a  benefit  is  otherwise  incidentally  claimed  under  it.  This 
is  a  fundamental  principle,  and  pervades  the  jurisprudence  of  all  civilized 
countries. 

K'othing  could  be  conceived  more  tyrannical  and  unjust,  than  to  hold 
a  man  conclusively  bound  by  a  judgment  i-ecovered  in  a  suit  of  which  he 
had  no  notice,  and  in  a  court  to  whose  jurisdiction  he  was  not  subject. 
Such  a  judgment  cannot  be  rendered  available  for  any  purpose.  This 
principle  is  well  settled  in  the  United  States,  ia  regard  to  judgments  ob- 
5j.oQ-|  tained  in  one  State,  when  sought  to  be  enforced  by  suit  in  the  *courts 

-'  of  another.  And  it  has  been  held  by  the  most  enlightened  courts 
we  have,  that  such  judgments  may  always  be  impeached  and  invalidated, 
by  showing  that  the  defendant  was  not  subject  to  the  jurisdiction  which 
rendered  the  judgment,  and  had  no  such  notice  of  the  suit  as  to  be  legally 
a  party  thereto  ;  Borden  vs.  Fitch,  (15  John.,  121 ;  Bessell  vs.  Briggs, 
9  Mass.  T.  R.,  462;  lliller  vs.  Miller,  1  Bail.  Rep.,  242,)  and  the 
same  point  has  been  ruled  in  the  King's  Bench,  in  regard  to  a  judgment 
recovered  in  the  island  of  Tobago.  (9  East.  191.)  If  the  want  of  juris- 
diction appear  on  the  face  of  the  proceedings,  there  can  be  no  doubt  that 
the  courts  of  the  State  in  which  the  judgment  was  rendered,  would  them- 
^oan  selves  regard  it  *as  a  nullity,  when  attempted  to  be  enforced  in  a 

-'  subsequent  action.  Such  was  the  case  of  Lesterjette,  Ordinary, 
vs.  The  Exerts,  of  Ford,{<i)  decided  at  Columbia,  Fall  Term,  1831  ;  where 

(a)  C.  B.  Lesterjette,  Ordinary,  vs.  The  Ex'ks.  of  Elijah  Ford. 

Where  there  is  only  one  defendant  in  a  suit  in  Equity,  who  has  removed  from  the 
State,  and  has  no  property  tliere,  he  cannot  be  made  a  party,  by  publication  iu 
the  gazette. 

A  decree  pronounced  against  an  absent  administrator,  tlius  attempted  to  be  made 
a  party,  is  a  nullity,  and  will  not  sustain  an  action  at  Law  against  the  sureties. 

Before  Earle,  J.,  at  Barnwell,  Fall  Term,  1831. 

"  Nathan  Grimes,  deceased,  made  a  vrill  by  which  he  bequeathed  certain  slaves 
to  his  widow  for  life  ;  to  be  then  sold,  and  the  proceeds  to  be  equally  divided 
among  his  seven  children. 

Isaac  (i rimes  and  William  Grimes  took  out  letters  of  administration  with  the 
will  annexed,  and  gave  bond  according  to  law.  Elijah  Ford,  the  defendant's  tes- 
tator, was  one  of  their  securities. 

John  (irimcs  the  elder  was  one  of  the  seven  children  of  Nathan  Grimes,  and 
was  entitled  under  the  will  to  a  portion  after  the  death  of  his  mother.  He  died 
intestate,  leaving  a  widow,  Mary,  who  afterM-ards  intermarried  with  one  Pitman, 
aiKl  one  son,  John  Grimes  the  younger,  his  onbj  heir  at  law,  for  whose  benefit  this 
action  was  brought.  There  was  no  administration  on  the  estate  of  John  Grimes 
the  elder. 

Tlie  ))l('as  were  non  est  factum  and  performance.  Replication  assigning  a  breach 
that  the  administrator  did  not  pay  over  to  John  Grimes  the  elder,  his  distributive 
Hhare  of  tlie  estate  of  Natli.Tii  (irimes  the  testator.     Rejoinder  and  issue. 

Tlie  plaintilfs,  to  sustain  their  action,  produced  the  will  of  Nathan  Grimes  ;  the 
return  of  sales  by  the  administrators  to  the  ordinary  ;  and  llnally,  a  bill  and  other 
proc<!erlings  in  the  Court  of  K(iuity,  at  the  suit  of  the  plaintitY  against  William 
Grimes,  surviving  administrator;  Isaac  Grimes  having  departed  this  life. 

In  tlie  bill  t)ie  plaintifls  style  themselvss  "your  orator  and  oratrix,  John  Grimes, 


*89] 


BUCKNER   VS.    ARCHER.  59 


it  was  held  tliat  a  surviving  administrator  and  sole  defendant,  who  was 
absent  from  the  State,  and  had  no  property  within  it,  could  not  be  made 
a  party  to  a  suit  in  Equity  by  publication  in  the  newspapers,  so  as  to 

the  younger  son  of  Jolin  Grimes  the  elder,  deceased,  and  Mary  Pitman,  widow  of 
said  John  Grimes  the  elder,  who  hath  since  intennarried, "  &c. 

It  appeared  by  tlie  proceedings,  and  was  admitted,  tliat  William  Grimes,  the 
surviving  administrator  and  defendant,  was  made  a  party  to  the  suit  in  equity  by 
publication  in  the  newspaper,  having  removed  without  the  limits  of  the  State. 

A  report  was  made  by  the  Commissioner,  3d  February,  1824,  in  favor  of  com- 
plainants, for  $729,  and  was  confirmed  the  4th  February,  1824.  A  motion  was 
made  for  a  non-suit,  and  was  sustained  by  the  Court.  The  principal  ground 
taken,  and  the  only  one  relied  on  by  the  Court  was,  that  William  (rriiaes  not 
being  a  citizen  of  South  Carolina,  not  being  found  within  its  limits,  and  having  no 
property  there,  could  not  be  made  a  party  to  a  suit  in  Equity  where  he  was  the 
sole  defendant,  by  publication  in  the  gazette,  so  as  to  give  that  Court  jurisdiction 
over  him ;  therefore,  the  decree  pronounced  against  him,  and  produced  in  evidence 
to  charge  his  securities,  was  a  nullity.  The  plaintiffs,  by  introducing  the  decree, 
made  the  whole  record  evidence,  so  as  to  authorize  the  Court  to  look  through  the 
proceedings  to  see  if  there  was  want  of  jurisdiction,  or  any  other  substantial  defect, 
to  avoid  the  decree.  The  plaintiffs  relied  on  the  Act  of  1784,  (o)  (1  Brev.  Dig. 
203. )  On  a  strict  construction  of  that  Act,  it  may  well  be  doubted  whether  it  was 
intended  to  apply  to  such  a  case  as  this  ;  a  case  where  there  was  only  one  defend- 
ant, and  he  absent,  residing  and  being  in  another  State,  and  having  no  property 
in  this.  I  incline  to  think  it  was  intended  for  those  cases  where  several  defendants 
are  sued  jointly,  in  relation  to  some  property  or  right  in  which  there  is  a  joint 
interest.  The  property  remaining  in  this  State,  and  some  one  or  more  of  the 
parties  (defendants)  in  mterest  being  here  and  served  with  process.  "  If  in  any 
suit  in  the  said  Court,  a  defendant  against  whom, ' '  &c. ,  not  the  defendant ;  leading 
rather  to  the  conclusion  that  it  was  meant  for  a  case  where  one  of  several  defend- 
ants could  not  be  served.  But  suppose  the  decree  would  be  valid  against  William 
Grimes,  and  could  be  enforced  against  him  if  he  were  to  return ;  it  does  not 
follow  that  it  is  binding  on  his  securities,  not  parties  to  the  suit,  or  that  it  can  be 
enforced  against  them.  Another  clause  of  the  same  Act  provides,  in  relation  to 
the  same  subject,  that  such  absent  defendant  may  appear  within  two  years  and 
claim  a  re-hearing  ;  but  that  in  case  neither  he  nor  his  legal  representative  shall 
do  so,  "the  decree  shall  stand  absolutely  confirmed  against  such  person,  his  legal 
representative,  and  all  claiming  under  him."  Now,  the  securities  do  not  stand  in 
either  of  these  latter  relations  to  William  Grimes;  and  the  last  phrase,  "all 
claiming  under  him,"  seems  to  point  exclusively  to  cases  where  some  right  or 
claim  to  property  within  the  state  is  tlie  subject  of  adjudication.  It  is  worthy  of 
remark,  too,  that  the  Act  of  1808,(6)  regulating  the  proceedings  in  the  Court  of 
Equity,  and  prescribing  the  mode  of  serving  process,  and  bringing  in  parties,  (1 
Brev.  Dig.,  211,)  contains  no  siich  provision;  and  it  may  well  be  questioned 
whether  the  Act  tmder  consideration  is  not  repugnant  to  the  latter  Act,  and  repealed 
by  the  general  repealing  clause,  page  212. 

This  question  is  briefly  touched  on,  and  perhaps  decided  by  Chancellor  De 
Saussure,  in  Wistanly  \s.  Savage,  (2  McC.  C.  R.,  435.)  in  which  he  says,  "  It  is 
very  certain  that  non-residents  cannot  be  made  amenable  to  suits  in  this  Court, 
unless  they  have  property  in  the  State  ;"  and  cites  1  Atk.  19  ;  and  he  considers 
the  Act  of"  1784  as  intended  to  regulate  proceedings  in  cases  where  non-residents 
could  be  made  amenable,  by  holding  property  within  the  State,  which  would  give 
jurisdiction,  both  at  Law  and  in  Equity :  at  Law  by  attachment,  and  in  Equity  by 
the  publication  of  notice  under  that  Act.  The  decree  in  this  case  would  hardly  be 
enforced  against  William  Grimes  by  the  Courts  of  the  State  where  he  resides,  as 
the  judgment  of  a  Court  of  compent  jurisdiction  ;  as  1  apprehend  neither  the  Courts 
of  this   State,  nor  any  other,  would  enforce   a  judgment,    (as   such  and  therefore 

(a)  7  Stat.  210,  §  12,  13.     An.  (b)  7  Stat.  306. 


60  CHARLESTON,  FEBRUARY,  1841.      VOL.  I.  [*89 

^„^-|  enable  the  Court  to  pronounce  a  *binding  decree.    In  a  suit  against 
-J  the  executors  of  the  security,  on  the  administration  bond,  such  a 
decree  was  declared  to  be  a  nullity. 

The  only  difficulty  in  this  case  arises  from  the  recital  in  the  decree  of 
the  ordinary,  that  Archer  had  been  cited  and  made  default  ;  and  we  are 
supposed  to  be  concluded  on  the  question  now  before  us,  by  the  case  of 

conclusive. )  obtamed  by  process  of  attachment  against  a  citizen  in  another  State, 
where  he  did  not  reside.     The  plaintiffs  moved  to  sustain  the  non-suit. 

Curia,  per  O'Neall,  J.  The  Act  of  1784,  (P.  L.  388,)  was  intended  to  give 
the  Court  of  Equity  jurisdiction  over  defendants  residing  out  of  the  State,  in  three 
classes  of  cases  :  1st,  where  there  might  be  other  defendants  residing  in  the  State  ; 
2d,  where  the  subject  matter  of  litigation  was  within  the  State  ;  and  3d,  where 
the  defendant  had  property  within  the  State,  which  could  not  otherwise  be  made 
liable  to  the  complainant  in  Equity.  It  is,  however,  manifest  in  the  two  last  of 
these  cases,  that  the  decree  can  have  operation  only  on  the  matter  in  dispute 
or  the  property  of  tlie  defendant,  and  is  only  a  decree  conclusive  against  him  and 
those  claiming  under  him,  as  to  the  matter  in  dispute,  or  the  property  made 
liable  to  the  decree.  Beyond  this,  I  apprehend,  the  decree  can  have  no  effect.  For 
as  to  the  defendant  himself,  so  long  as  he  remains  beyond  the  jurisdiction  of  this 
Court,  it  cannot  be  enforced  by  any  action  on  it  in  another  State.  In  the  first 
case  the  decree  may  operate  to  conclude  not  only  the  defendants,  but  also  in 
some  cases  his  privies  in  law.  If  two  administer  on  an  estate,  and  one  goes  out 
of  the  State,  and  a  bill  is  filed  against  the  one  in  the  State,  and  the  other  out  of 
it,  for  an  account,  and  a  decree  is  obtained  against  them  ;  in  such  a  case,  I  should 
think  the  decree  evidence  to  charge  the  securities  to  the  administration  bond. 
The  securities  undertake  for  the  administration  of  both,  and  if  one  is  within  the 
jurisdiction,  the  other  must  be  joined,  and  hence  the  Court  having  obtained 
jurisdiction  by  having  one  of  the  parties  actually  before  them,  and  the  other 
constructively,  the  decree  is  conclusive  against  the  administrator  in  Court,  and  of 
necessity  must  be  against  the  securities. 

In  a  case  decided  in  Charleston,  at  our  session  in  February  last,  it  was 

held  that  the  circumstance  of  the  fund  in  dispute  being  within  the  jurisdiction  of 
the  Court,  gave  it  j  urisdiction,  notwithstanding  the  defendants  were  without  the 
State. 

In  the  case  of  Miller  vs.  Miller,{a)  decided  Spring  Term,  1829,  at  Columbia,  it 
was  held  tliat  no  action  could  be  maintained  on  a  decree  obtained  by  publication 
in  North  Carolina  against  defendants  residing  in  this  State.  I  hence  conclude 
that  where  a  decree  is  obtained  against  a  sole  defendant,  residing  out  of  the  State, 
it  must  act  upon  the  subject  matter  in  dispute,  or  upon  the  defendant's  property 
in  th<;  State,  which  is  decreed  to  be  liable  to  the  satisfaction  of  the  complainant's 
equitable  demand.  For  any  other  purposes,  it  can  have  no  effect.  For,  divested 
of  these,  the  Court  of  Equity  of  this  State  has  no  jurisdiction  over  a  defendant 
residing  out  of  it.  The  decree  olf'ored  in  evidence  in  this  case,  was  clearly  pro- 
nounced against  a  party  not  in  Court,  and  over  whom  the  Court  had  no  jurisdiction, 
and  is  thcirtifore  void. 

Th(!  supposed  hardship  of  the  case  does  not  in  reality  exist.  Where  a  sole 
administrator  is  aljsent  from  the  State,  that  circumstance"  will  give  the  Court  of 
iMjuity  jurisdiction  to  ent(!rtain  a  bill  for  an  account  against  him  and  his  securities. 
See  Cole  vs.  Cole,  decided  at  Columbia.  The  i)arties  here  have  therefore  no 
difficulty  in  obtaining  their  riglits,  if  they  will  pursue  the  proper  course. 

Tlie  motion  to  set  aside  the  non-suit  is  refused. 

Jou>so.\,  J.,  concurred:  Harper,  J.,  absent. 

(a)  1  Bail.  242.     An. 

See  Menlove  vs.  Oakes,  2  McMul.  1G2.     An. 


*9()]  BUCKNER   VS.    ARCHER.  61 

LyJeft^  Ordinary,  vs.  Robinson,  (1  Bail.  Rep.  25.)  In  that  case  the 
administrator  himself  being  sued  at  hiw,  pleaded  that  the  decree  of  the 
ordinary  had  been  rendered  against  without  his  having  been  duly  cited 
or  in  any  manner  made  a  party.  But  it  was  held  that  such  defence 
could  not  avail,  and  that  the  decree  of  the  ordinary  was  conclusive. 

Mr.  Justice  Nott  says,  "  when  a  decree  is  pronounced,  either  in  a 
Court  of  Ordinary,  or  in  a  Court  of  Equity,  an  action  may  be  maintained 
on  the  bond,  against  the  administrator  or  his  sureties,  to  recover  the 
amount  so  decreed  to  be  due  ;  and  whether  the  decree  be  correct  or  not, 
cannot  be  tried  in  this  collateral  way.  It  must  be  conclusive  of  what  it 
purports  to  decide."  Now,  how  far  the  fact  that  the  party  was  cited, 
was  a  point  decided  by  the  decree,  may  be  well  questioned.  That  was 
not  the  point  in  issue  ;  it  was  not  the  subject  matter  of  the  proceeding, 
which  was  instituted  only  to  ascertain  the  amount  of  the  administrator's 
indebtedness.  But  a  material  distinction  between  that  case  and  this  is, 
that  there  the  administrator  himself  was  alone  sued  ;  and  being  perma- 
nently resident,  and  therefore  admitting  himself  to  have  been  subject  to 
the  jurisdiction,  he  claimed  to  avoid  the  decree  by  denying  the  truth  of 
the  recital. 

It  is  not  pretended  that  the  ordinary  can,  by  publication  in  the  gaz- 
zette,  make  one  a  party  to  a  proceeding  before  him,  wlio  has  removed 
from  the  State,  and  is  a  resident  citizen  of  another.  If  he  had  recited 
that  sort  of  notice  in  the  decree,  it  would  not  have  been  regarded  as 
conclusive,  even  against  the  administrator.  Shall  it  be  contended  that 
by  reciting  merely  that  the  administrator  was  duly  cited,  the  ordinary 
can  make  his  decree  conclusive  evidence  against  the  sureties  ?  Upon 
the  whole  current  of  American  cases,  if  this  decree  were  attempted  to  be 
enforced  against  Archer  in  the  State  where  he  resides,  he  might  avail 
himself  of  the  want  of  jurisdiction,  as  a  defence.  It  was  held  in  Lester- 
jette  vs.  Ex'rs  of  Ford,  that  *the  decree  could  not  be  enforced  p^„, 
against  the  absent  administrator  in  another  State.  When  the  case  ^ 
of  Lyles  vs.  Robinson  was  decided,  the  general  understanding  of  the 
profession  was,  that  the  decree  of  the  ordinary  was  equally  effectual 
against  the  securities,  as  the  administrator. 

In  the  case  of  the  Ordinary  vs.  Gondy,  (2  Hill  R.,  313,)  (a)  that  subject 
underwent  the  elaborate  examination  of  the  Court ;  and  on  mature  con- 
sideration it  was  held,  that  tlie  sureties  do  not  stand  in  that  relation  of 
of  jirivity  to  the  administrator,  which  makes  a  decree  against  him, 
conclusive  against  them  ;  that  such  decree  is  only  ^:»rma /acie  evidence 
of  the  amount  due  ;  and  that  the  sureties,  when  sued  upon  the  bond,  may 
prove  that  the  decree  was  rendered  for  a  larger  amount  than  was  due  and 
owing ;  as,  for  instance,  in  that  case,  that  the  decree  embraced  an  indi- 
vidual debt  of  the  administrator  for  which  the  sureties  were  not  liable. 
Being  held  as  only  jjrima  facie  evidence,  such  decree  is  put  upon  the 
footing  of  foreign  judgment,  of  which,  on  the  authorities  cited,  the  valid- 
ity may  be  impeached  for  want  of  jurisdiction.  And  upon  the  whole 
reasoning  in  the  Ordinary  vs.    Condy,  if  the  surety  may  controvert  the 

(a)  See  Norton  vs.  Wallace,  1  Rich.  507,  2  Rich.  461.  Davant  vs.  Webb,  2  Rich. 
385.     Dud.  27.     Post  101,  250. 


62  CHi^RLESTON,  FEBRUARY,  1841.       VOL.  I.  [*91 

decree  against  the  administrator,  where  he  has  been  regularly  and  duly 
cited,  on  the  very  point  which  it  is  intended  to  ascertain  and  make 
certa'in,  a  fortiori,  he  should  be  allowed  to  prove  that  the  admiuistrator, 
in  fact,  was  not  a  citizen  of  the  State,  but  had  removed  so  as  to  be  no 
longer  'subject  to  the  jurisdiction.  How  far  such  proof  will  render  the 
decree  a  nullity,  and  wholly  inoperative  against  the  sureties,  we  will  not 
now  undertake  to  decide. 

The  motion  is  graned. 

O'Xeall,  Evans,  and  Butler,  JJ.,  concurred:  Richardson  and 
Gantt,  JJ.,  dissented. 

Hutson  and  Bellinger,  for  the  motion. 

See  also  5  Rich.  85.  4  Rich.  120,  278.  Act  of  1839.  11  Stat.  40,  provides  for 
the  case  of  an  absent  administrator.     An. 


*92]  *F.  Day  vs.  F.  A.  Becher. 

Where  goods  have  been  levied  on  by  a  Sheriff,  under  executions  in  his  hands, 
and  before  they  are  sold,  a  wi'it  of  foreign  attachment  against  the  same  defendant 
is  lodged  in  his  office,  "he  may  levy  the  attachment  also  on  the  goods  ;  and  this 
is  not  such  a  case,  where  the  property  or  fund  is  protected  by  being  in  the 
custody  of  the  law. 

Merely  lodging  a  writ  of  attachment  in  the  Sheriff's  office,  is  not  sufficient  to  attach 
the  property  or  fund  in  his  hands  ;  but  the  Court  will  permit  him  to  accept 
service,  even  after  rule  and  cause  shown — nunc  pro  tunc. 

Before  O'Neall,  J.,  at  Charleston,  May  Terra,  1840. 

This  was  a  rule  against  the  Sheriff  to  show  cause  why  he  did  not  pay 
over  moneys  in  his  hands,  belonging  to  the  defendant,  to  the  plaintiff. 

He  returned  for  cause,  that  he  levied  sundry  executions  on  the  goods 
of  the  defendant,  from  which  they  were  satisfied,  leaving  a  balance  in  his 
hands  ;  that  while  the  goods  were  in  his  hands,  a  writ  of  foreign  attach- 
ment was  lodged  in  his  office,  which  was  considered  as  accepted  by  him. 
Afterwards,  the  execution  of  the  plaintiff  was  issued  out  of  the  City 
Court,  and  lodged  in  his  office. 

The  Sheriff  was  allowed  to  enter  an  acceptance  of  the  writ  of 
attaclimont  on  the  day  on  which  it  was  lodged  in  his  office. 

Tiie  rule  was  discharged.  The  plaintiff  appeals,  on  the  annexed 
grounds. 

GROUNDS    OF   APPEAIi. 

1.  That  tlic  Slioriff  havinj^  made  a  levy  under  executions,  the  whole  property 
wan  in  the  custody  of  the  law,  and  could  not  be  attached. 

2.  That  to  attach  any  iiro])eity  in  the  hands  of  the  Sheriff,  it  is  not  sufficient 
merely  to  lodge  a  writ  of  attacliinunt  in  his  office. 

3.  that  though  the  Hlieriff  did  acknowledge  the  lodgment  of  the  writ,  as 
notice  to  liimseH',  it  was  not  Rufficient  to  bar  the  action  in  this  case. 

4.  'J'hat  it  is  necesary,  in  order  to  attach  property  in  the  hands  of  the  Sheriff, 
that  ho  should  be  regularly  served  with  a  copy  of  the  attachment  writ  by  the 
Coroner. 

*931       •''■  '^''"*'  '"'"  ^^onor  erred  in  allowing  the  Sheriff,  after  rule  and  cause 
J       Bhowii,  to  enter  a  written  admission  of  notice,  or  acceptance  of  service. 


^93] 


DAT  VS.    BECHER.  63 


SHERIFF  S  RETUKN  TO  THE  RULE. 


The  Sheriff  of  Charleston  District,  in  answer  to  the  foregoing  rule,  says,  that  on 
the  10th  and  11th  days  of  April  last,  two./?,  fas.,  were  lodged  in  his  office,  at  the 
several  suits  of  Charles  J.  Bollin  and  j\fatilda  Schroder  vs.  F.  A.  Bechcr,  under 
which  he  levied  on  and  sold  the  stock  in  trade  of  said  F.  A.  Becher,  to  an  amount 
considerably  greater  than  the  sums  due  on  said  executions,  and  expenses  of  sale. 
That  wliile  the  said  goods  were  yet  unsold,  in  his  hands,  to  wit,  on  the  22d  April 
last,  a  writ  of  foreign  attachment  was  lodged  in  his  office,  at  the  suit  of  James  A. 
Bowie  vs.  the  said  F.  A.  Becher,  for  an  amount  more  than  sufficient  to  exhaust  the 
balance  of  the  proceeds  of  sale  in  his  hands.  That  on  the  14th  day  of  May  last,  a 
/(.  fa.  was  lodged  in  the  Office  of  the  yheriff  of  the  City  Court,  at  the  suit  of  Fisher 
Day,  against  the  said  F.  A.  Becher,  and  notice  of  the  same  was  served  on  the 
respondent.  That  on  the  19th  day  of  May  last,  s,fi.  fa.  was  lodged  in  respondent's 
office  at  the  suit  of  the  said  James  A.  Bowie  vs.  the  said  F.  A.  Becher,  on  the 
attachment  writ  aforesaid,  and  respondent  has  been  required  to  pay  over  the 
balance  in  his  hands  to  the  attaching  creditor  aforesaid  ;  and  under  these  circum- 
stances he  prays  judgment  of  the  Court  as  to  the  disposition  over  of  the  fund  in 
his  hands.  Respondent  further  answers,  that  there  being  no  Coroner  in  the 
district,  a  day  or  two  after  the  lodgment  of  the  attachment,  plaintiff's  counsel 
consulted  respondent  as  to  the  acknowledgment  of  the  service  of  the  attachment 
by  him  as  a  garnishee,  and  respondent  replied  he  deemed  it  unnecessaiy,  as  he 
considered  the  lodgment  of  the  writ  sufficient  notice.  Respondent  further  answers, 
that  the  sale  of  the  goods  being  for  a  greater  amount  than  the  executions  called 
for,  was  made  by  consent  of  all  parties,  including  the  defendant,  and  the 
attaching  creditor. 

Alexander  H.  Brown,  S.  C.  D. 

Walker,  for  the  motion,  said  that  to  attach  the  funds  of  an  absent  debtor,  the 
garnishee  must  be  served.  He  cited  P.  L.  *369,  9th  sec.  The  Sheriff  must  i-^q^^ 
be  served  by  the  Coroner.     (2  Brev.  Dig.  8(3.)  *- 

Yeadon,  contra,  submitted  the  case  without  argument. 

Curia,  per  O'Neall,  J.  In  this  case  it  ought  to  be  kept  constantly 
in  mind,  that  when  the  writ  of  attachment  was  lodged  in  the  Sheriff's 
office,  the  goods  of  the  defendant  were  in  his  hands  in  specie.  He  had 
previously  seized  them  in  execution  ;  but  still  lie  might  have  levied  the 
attachment,  and  this  would  have  constituted  no  conflict  between  the  two 
processes.  The  levy  of  the  attachment  would  have  been  a  junior  lien, 
and  could  only  have  created  a  claim  for  what  might  have  been  left  after 
satisfying  the  precedent  levy.  This  is  not  a  case  where  the  property  or 
fund  is  protected  by  being  in  the  custody  of  the  law.  So  too,  the 
Sheriff  being  in  the  possession  of  the  goods  of  the  absent  debtor,  was 
properly  the  garnishee. 

For  he  is  not  within  the  exception  which  in  one  case  exempts  him 
from  being  made  a  garnishee.  In  Serg't.  on  Att.  89, (a)  it  is  said  that 
a  Sheriff  cannot  be  made  a  garnishee  in  respect  to  money  raised  on  a 
fi.  fa.  This  is  the  only  exception,  and  in  all  other  cases  he  is  lilve  any 
ether  person,  liable  to  be  summoned.  In  this  case  he  had  the  defendant's 
goods,  and  now  has  the  defendant's  money,  left  after  satisfying  the  elder 
execution.  Service  upon  him  would  have  been  a  levy  upon  the  goods. 
He  might  accept  the  service,  and  thus  make  it  effectual.  He  said  in  his 
return,  that  he  was  applied  to  to  acknowledge  service,  and  that  he  said 
he  thought  it  unnecessary,  as  he  considered  the  lodgment  of  the  writ 
sufficient  notice.     The  party  plaintiff  in  attachment  ought  not  to  be  pre- 

(a)  See  Blair  vs.  Cantly,  2  Sp.  34.     1  Strob.  244      2  Sp.  389.     An. 


6i  CHARLESTON,  FEBRUARY,  1841.      VOL.  I.  [*94 

judiced  by  an  ommission  of  the  officer  of  the  law,  which  the  Court  could 
remedy  by  amendment. 

This  is  often  done  in  the  amendment  of  returns  of  service  of  writs,  of 
levies  on  fi.  fas.  and  generally  in  all  cases  where  it  is  a  mere  clerical 
omission  or  mistake.  This  practice  was  pursued  in  this  case,  and  by 
doing-  it  the  record  is  perfect,  and  the  prior  lien  of  the  attaching  creditor 
is  preserved. 

The  motion  is  dismissed. 

The  whole  court  concurred. 


*95]  *MosES  D.  Hyams  vs.  John  Boyce,  Jb. 

The  custom  of  postponing  the  payment  of  the  Clerk's  costs,  until  the  termination 
of  the  suit,  will  be  adhered  to,  as  indicating  the  proper  construction  of  the  "/ee 
biW  of  1«39,  p.  8. 

Before  Richardson,  J.,  at  Charleston,  January  Term,  1841. 

This  case  came  up  upon  the  following  rule  against  the  Clerk  of  the 
Court  of  Charleston  District : 

On  motion  of  Kunhardt  c?-  Pringle,  plaintiflTs  attorneys,  it  is  ordered  that  C.  C. 
Strohecker,  Esq.,  Clerk  of  the  Court  of  Common  Pleas,  do  show  cause  on  Saturday, 
the  30th  inst.,  at  10  o'clock,  A.  M.,  why  he  refuses  to  deliver  to  the  plaintiff's 
attorneys,  the  writ  signed  by  him  as  clerk  in  the  same.    By  the  Court. 

(Signed)       C.  C.  Steohecker,  C.  C.  P. 

RETURN    OF    THE    CLERK. 

C.  C.  Strohecker,  Clerk  of  the  Court  of  General  Sessions  and  Common  Pleas,  for 
Charleston  District,  upon  whom  the  above  rule  has  been  served,  to  show  cause 
why  he  delivers  to  the  plaintilf's  attorneys  the  writ  signed  by  him,  as  Clerk  in  the 
said  action,  for  cause  showeth,  that  by  the  present  fee  bill  of  1839,  and  under  the 
law  in  relation  to  the  fees  of  the  Clerks  of  the  respective  Circuit  Courts  of  Common 
Pleas  and  (ieneral  Sessions  in  this  State,  the  said  fees  are  of  right  demandable 
and  payable  upon  the  performance  of  the  specific  service  rendered,  from  the  party 
at  wliose  request,  or  for  whom  the  service  was  rendered.  That  in  the  absence  of 
any  special  contract,  the  law  raises  a  promise  on  the  part  of  the  person  at  whose 
request  the  Clerk  renders  any  specific  service,  chargeable  in  tlie  fee  bill,  to  pay 
tlie  fee  allowed  by  law  presently,  as  in  all  cases  of  implied  contracts  ;  and  that  in 
the  event  of  such  service  being  demanded,  the  respondent  is  not  bound  to  render 
the  same,  unless  the  fee  allowed  by  law  is  tendered ;  and,  as  in  this  case,  upon 
signing  a  writ,  the  respondent  has  a  legal  right  to  withhold  the  same  from  the 
party  until  the  fee  for  such  service  is  tendered.  This  view  of  the  legal  rights  of 
the  respondent  is  submitted  as  according  best  with  the  general  principles  of  the 
law  (in  the  suliject  of  the  costs  of  actions  at  law,  in  which  the  party,  plaintiff  or 
*I)C1  '''''^'''"*''>"*^)  'lo'^s  *actually  recover  from  the  losing  party,  the  expenses  to  which 
lu!  lias  been  put  in  the  prosecution  or  defence  of  the  action.  And  the  recognition 
of  the  Icifd  rif/lu  of  tJie  Clerk  to  require  his  fees  to  be  paid  wlien  the  service  is  ren- 
dered, is  believeil  to  be  essential  to  the  proper  discharge  of  the  duties  of  tlie  oflace, 
and  tlic  preservation  of  proper  order  and  economy  in  the  management  of  the 
business  of  the  same,  as  well  as  furnishing  the  only  means  by  which  the  clerk  can 
realize  liis  payment  for  his  services  which  the  law  intended  him  to  receive.  The 
respondent,  in  tlio  exercise  of  this  right,  does  not  intend  to  intioduce  any  new  rule 
or  practice  which  may  work  any  inconvenience  to  parties,  but  the  right  being 
recognized,  will  so  act  upon  it,  that  while  he  may  feel  himself  willing  to  keep 


*96]  HYAMS    VS.    BOYCE.  65 

accounts  with  the  practitioners  at  the  bar,  as  formerly,  he  may,  if  he  find  necessary, 
and  as  he  may  find  it  advisible,  refuse  to  give  long  credits  for  his  services,  and 
claim  payment  for  the  same  when  rendered. 

C.  C.  Stkohecker, 
C.  G.  S.  ^'  C.  C.  P. 

On  hearing  the  rule  and  the  return,  his  Honor,  Judge  Richardson, 
ordered  the  rule  to  be  made  absohite. 

An  appeal  made  from  his  Honor's  decision,  on  the  ground  that  the  same  is 
contrary  to  law. 

Rice,  for  the  motion,  cited  A.  A.  1791,  (1  Faust,  3,)  fees  of  ofiice  are  established 
p.  22,  (2  Faust,  33.)  A.  A.  1827,  fee  bill,  p.  55.  A.  A.  1839,  p.  14,  (Bac.  Ab. 
tit.  costs.) 

Kunhardt,  contra,  contended  that  neither  the  plaintiff  nor  his  attorney  had  the 
right  to  collect  Sheriff's  and  Clerk's  costs ;  cited  McC.  25.  Costs  abide  the  deter- 
mination of  the  action. — lb,  25.  The  clerk  cannot  recover  his  costs  against  the 
plaintiff,  imless  the  defendant  be  insolvent,  or  the  plaintiff  has  collected  them. 
The  law,  he  contended,  never  would  have  given  the  Clerk  the  right  of  issuing 
execution  for  costs  if  they  had  contemplated  he  had  any  other  remedy. 

Grimke,  in  reply,  cited  7  Cranch,  276 — each  party  is  liable  to  the  Clerk  for  his 


fees,  no  matter  who  recovers,  "pr.    Ch.  J.   *Ma)-shalI,'^  A.  A.  1839,  p.  16, 
Clerk's  right  to  retain.     2  Stran.  1126  ;  8  Mod.  226-307—2  P.  AV.  460. 


[*97 


Curia,  per  Richardson,  J.  The  question  is,  has  the  Clerk  of  the 
Court  of  Common  Pleas,  before  he  delivers  the  writ  necessary  for  the 
commencement  of  an  action  at  law,  the  authority  to  require  of  the  suitor 
the  costs  allowed  by  the  Fee  Bill  of  18.39  ?  The  demand  is  small.  But 
the  decision  of  the  case  may  have  important  circumstances.  It  involves 
the  right  of  litigants,  and  it  may  affect  the  principles  of  judicial  justice. 
The  fee  bill  of  1791, (a)  the  raised  fee  bill  of  1827,  and  that  of  1839,  under 
which  last  the  question  before  the  Court  is  made,  all  allow  the  costs  to 
the  Clerk,  in  the  same  language  as  they  are  allowed  to  some  other 
officers  :  as  the  Registers,  Ordinaries,  Sheriffs,  &c.  But  custom  has 
obtained,  at  least  since  the  fee  bill  of  1791,(&)  to  tax  and  allow  the  costs  of 
the  Clerk,  together  with  what  are  called  the  Court  charges,  at  the  termi- 
nation or  dismissal  of  a  suit,  and  not  before. 

In  the  case  of  Corrie  vs.  Fits  &  Givens,  (3  McC.  25,)  this  custom  is 
alluded  to,  and  as  far  as  it  can  have  influence,  the  Judge  justifies  it  under 
the  fee  bill  of  1791.  That  case  decided  that  the  Clerk  can  require  pay- 
ment of  his  costs  of  the  plaintift",  who  has  obtained  judgment,  only  in 
case  of  the  insolvency  of  the  defendant.  Now,  if  the  Clerk  had  the  right 
in  the  first  instance  to  call  on  the  plaintiff,  for  his  successive  fees,  he 
surely  could  not  have  lost  the  right  by  the  defendant's  being  condemned 
to  restore  the  fees  that  the  plaintift'  is  supposed  by  the  judgment  to  have 
paid.     The  converse  would  have  been  the  conclusion. 

I  decided  that  case  on  the  circuit,  and  have  now  an  opportunity  of 
adding  my  own  reasons  to  those  of  the  late  Court  of  Errors  in  supfjort 
of  that  decision,  as  well  as  in  favor  of  the  present.  In  that  case  it  is 
incidentally  stated,  that  in  England  the  plaintiff"  pays  the  Clerk's  costs  at 
the  successive  stages  of  the  case.  "  But  here  the  costs  al)ide  the  deter- 
mination of  the  case."     If  this  had  been  the  precise  point  for  the  decision 

(a)  5  Stat.  154.     4  Stat.  333.     12  Stat.  8.     (6)  1840,  11  Stat.  6.     An. 
YoL.  I.— 6 


66  CHARLESTON,  FEBRUARY,  1841.      VOL.  I.  [*97 

of  the  Court,  it  would  have  concluded  the  present  question,  at  least  under 
the  fee  bill  of  1791  The  fee  bill  of  1839  allows  the  Clerk  for  "  signinjr 
writ,"  and  all  incidental  services  before  filing  declaration,  "fifty  cents." 
But  is  he  entitled  to  the  money  upon  signing  the  writ?  or  must  he  abide 
^QQ-,  *the  determination  of  the  suit,  and  look  in  the  first  instance  to  the  party 
^  -I  against  whom  the  costs  maybe  ordered,  according  to  former  practice  ? 
As  a  general  rule,  officers  are  entitled  to  their  costs  as  they  do  successive 
official  acts.  But,  is  there  not  good  reason  for  the  custom  of  making  the 
Clerk  of  the  Court  an  exception  to  this  rule  ? 

Before  the  constitution  of  1791,  the  Judges  also  received  costs,  and 
were  paid  for  their  services  in  that  way.  But  as  far  as  1  have  under- 
stood, their  costs,  too,  abided  the  determination  of  suits.  And  I  think 
the  reason  and  principle  of  practice  may  be  seen  by  referring  to  the  origin 
of  costs,  and  the  principles  of  judicial  justice.  At  common  law  no  costs 
were  allowed  in  courts  of  Justice  The  plaintiff  who  lost  his  suit  might 
:be  fined,  pro  f also  clamore,  "or  judged  in  misericordia,"  according  to 
the  justice  or  injustice  of  his  case.  And  perhaps  an  unjust  defendant 
punished  in  the  same  way,  or  by  increased  damages.  But  such  fine  or 
damages  necessarily  abide  the  determination  of  every  suit.  In  process 
of  time,  costs  were  given  to  the  officers  of  the  Court  in  lieu  of  such  fines, 
which  formerly  went  to  the  King  And  is  there  as  not  good  reason  that 
they  too  shall  abide  the  event  of  the  suit,  and  fall  only,  or  at  least  in  the 
first  instance,  upon  the  plaintiff,  who  made  a  false  clamor,  or  the 
defendant,  who  set  up  an  unjust  defence  ?  If  otherwise,  would  we  not 
lose  sight  of  the  proper  rights  of  parties  claiming  justice  at  the  hands  of 
the  Judges  ? 

It  is  one  of  the  first  principles  of  Courts  of  Justice,  that  all  parties 
shall  be  heard  without  obstacle,  expense,  or  delay.  The  poor  and  the 
weak  absolutely  require  such  principles  for  protection,  and  they  must  be 
awarded  to  all  alike.  But  if  at  every  step  of  a  case,  the  plaintiff  shall  be 
obliged  to  pay  costs  to  ministerial  officers  before  he  can  reach  the  ear 
of  the  Judge,  may  we  not  occlude  the  Courts  of  Justice,  at  least  to  some 
persons  ?  A  writ  is  the  judicial  notice  to  a  debtor  that  his  creditor 
demands  justice.  The  declaration  is  the  precise  statement  of  the  demand. 
To  this  the  debtor  responds  ;  and  the  issue  is  made  up  for  the  decision  of 
the  Court.  Such  are  the  legal  forms  through  which  we  demand  to  be 
heard,  and  luive  justice  judicially  administered  ;  and  costs  may  be  very 
justly  required  after  and  according  to  the  decision.  But  any  hindrance,  iu 
any  step,  to  the  judicial  hearing,  would  be  as  a  lien  to  our  system  of  justice  ; 
^gg-j  as  to  impede  a  petilion  to  the  *Legislature  for  a  right,  or  to  the  Gov- 
-^  ernor  for  mercy.  They  all  stand  upon  the  same  principle — the  right 
to  have  a  hearing  and  decision  of  the  case  presented.  Such  principles 
of  judicial  justice  are  summed  up  in  Magna  Charta.  "  NuUi  negabimus, 
nuUi  vendenuis,  nulli  (IcferemusjmticianU'  And  these  words,  so  full 
of  history  and  meaning,  suggest  to  the  mind  the  whole  additional 
argument  I  would  o(T(!r  in  support  of  the  custom  of  postponing  the 
payment  of  the  costs  to  the  determination  of  suits.  The  argument  on  the 
other  side  is,  that  fees  or  costs  being  allowed  by  the  Act,  they  ought  to 
be  paid  as  the  services  arc  rendered.  But  laws  are  to  be  construed  by 
their  subject  matter,  which  includes  the  moral  and  legal  principles  that 
necessarily  belong  to  the  subject. 


*99] 


ORDINARY   VS.    CARLILE.  67 


The  Court  therefore  think  that  the  custom  of  postponiiific  the  payment 
of  the  Clerk's  costs,  which  has  obtained  for  fifty  years,  under  tlie  former 
fee  bills,  should  be  adhered  to,  as  indicating:  the  proper  construction  of 
the  new  fee  bill,  which,  let  it  be  observed,  must  have  been  passed  under 
a  full  knowledge  of  such  customary  and  habitual  construction  of  all  the 
former  fee  bills  ;  and  a  custom  so  long  and  so  closely  connected  with  the 
subject  of  the  new  enactment  of  1839,  can  scarcely  be  considered  other- 
wise than  as  a  part  of  the  subject  matter  itself,  and  would  have  naturally 
called  for  positive  expression  if  it  had  been  intended  to  change  the 
custom. 

The  Circuit  decision  is  therefore  affirmed,  and  the  motion  dismissed. 

The  whole  Court  concurred. 


The  Ordinary  vs.  Hanxah  Carlile.  [*100 

The  Same  vs.  P.  Dueant. 

A  decree  in  the  Court  of  Equity  against  an  administrator,  with  the  return  of 
^'■nulla  bona'''  on  the  ^'.  fa.,  (issued  on  the  decree,)  is  '^ prima  facie'''  evidence 
against  the  surety  on  the  administration  bond ;  and  it  is  not  necessary  after 
such  j)rooeedings  to  have  a  decree  of  the  Court  of  Ordinary  before  commeuciug 
actions  on  tlie  bond. 

A  surety  of  an  administratrix,  (whose  intestate  was  the  administratrix  of  an  estate 
in  her  life  time, )  is  not  absohitely  bound  by  a  decree  in  the  Court  of  Equity 
against  his  principal,  for  the  devastavit  committed  on  the  estate  of  which  his 
principal's  intestate  was  the  administratrix,  where  he  was  not  made  a  party  to 
the  proceedings ;  and  he  is  not  concluded  from  showing  that  his  principal  received 
nothing  of  the  assets  with  which  she  is  charged. 

Before  Richardson,  J.,  at  Charleston,  January  Term,  1841. 

These  were  actions  of  debt  on  the  administration  bond  of  one  of  the 
defendants,  Hannah  Carlile,  as  administratrix  of  Jane  Radford,  deceased, 
the  one  being  against  her  as  principal,  and  the  other  against  Paul  Durant, 
as  her  security.  The  plaintiff  produced,  first,  the  administration  bond — 
then  the  proceedings  in  a  case  in  Equity,  at  the  suit  of  Wm.  B.  Campbell, 
administrator,  de  bonis  non,  of  John  J.  Radford,  deceased,  the  real 
plaintiff  in  these  suits  against  the  defendant,  as  administratrix  of  Jane 
Radford,  who  was  in  her  life  time,  administratrix  of  said  John  J.  Radford. 
These  proceedings  consisted  of  a  bill  ordered  pro  confesso — an  order  of 
reference — a  report  of  the  commissioner,  and  a  decree  against  the  defen- 
dant for  the  sum  of  $205  38,  with  interest  from  23d  June,  1837.  The 
plaintiffs  then  produced  afi.fa.  issued  in  pursuance  of  said  decree,  and 
returned  7iidla  bona.  These  proceedings  speak  for  themselves.  The 
defendant  moved  for  nonsuits,  on  the  ground  that  no  citation  had  been 
issued  against  the  defendant,  Hannah  Carlile,  calling  on  her  to  account 
before  the  Ordinary  for  the  estate  of  Jane  Radford,  deceased,  the  intes- 
tate of  the  defendant,  and  no  decree  against  her  for  any  assets  of  the 
estate  of  Jane  Radford,  which  had  come  to  her  hands  to  be  administered. 
I  thought  such  a  proceeding  essential  before  action  brought  on  the 
administration  bond,  and  that  the  decree  in  Equity,  produced  by  the 


68  CHARLESTON,  FEBRUARY,  1841.      YOL.  I.  [*100 

plaintiEf,  with  the  return  of  nulla  bono,  without  a  decree  from  the  Ordi- 
^.r-,-,  nary,  or  the  Court  *of  Equity,  as  to  the  assets  of  Jane  Radford, 
*  -'  deceased,  did  not  constitute  proper  legal  proof  of  a  devastavit 
by  the  defendant  Hannah  Carlile,  and  granted  the  motion  for  a  nonsuit. 
I  received  the  annexed  notice  of  appeal,  which,  with  the  proceedings  iu 
Equity,  will  sufficiently  explain  the  case  to  the  Court  of  Appeals. 

GROUNDS    OF   APPEAL. 

1.  That  the  decree  in  Equity,  produced  in  these  cases  obtained  by  the  plain- 
ti£F  airainst  the  defendant,  Hannah  Carlile,  as  administratrix,  with  the  Ji.  fa. 
returned  nulla  bona,  was  evidence  of  a  devastavit,  to  charge  the  administratrix 
and  her  surety,  the  other  defendant. 

2.  That  there  being  a  decree  in  Equity  against  the  administratrix  to  pay, 
she  having  failed  to  account,  it  was  not  incumbent  on  the  plaintiff  to  call  the 
defendant,  the  administratrix,  to  account  before  the  Ordinary,  previous  to  an 
action  on  the  administration  bond. 

3.  That  the  decision  of  his  Honor  was  in  other  respects,  against  the  law  of 
the  case  arising  on  the  facts  proved. 

Curia,  per  Butler,  J.  We  are  of  opinion  that  the  nonsuit  ordered  by 
the  Circuit  Judge  should  be  set  aside.  Hannah  Carlile  had  been  duly 
called  on  to  account,  by  a  Court  of  competent  jurisdiction.  She  had  it 
in  her  power  to  acccount  for  her  administration  as  fully  iu  the  Court  of 
Equity,  as  she  would  have  had  before  the  Ordinary.  Her  liability  was 
established  by  a  decree  which  she  did  not  oppose.  Whether  she  could 
have  effectually  resisted  it  or  not,  is  not  for  this  Court  to  inquire.  It  is 
only  necessary  to  inquire  whether  there  was  such  evidence  of  a  devastavit, 
a?,  prima  facie,  to  subject  her  security,  Durant,  to  liability  on  the  bond. 
By  the  decree  it  would  appear  that  Hannah  Carlile  had  assets  for  which 
she  was  liable  to  those  having  demands  against  her  intestate,  and  by  the 
return  of  nulht  bona  on  the  fi.  fa.  (issued  on  the  decree)  it  would  appear 
that  she  had  wasted  the  assets  that  came  into  her  hands,  (a)  This  has 
always  been  regarded,  as  sufficient  evidence  of  a  derasfavit,  to  charge 
the  security  on  the  administration  bond.  The  ground  was  taken  in 
argument,  and  it  was  the  principal  one  relied  on,  that  the  securities  of 
*1001  J^Jifi  Radford  were  alone  liable  to  the  i)resent  plaintiff,  as  she 
"'-'  *received  into  her  possession,  and  did  not  account  in  her  lifetime, 
for  the  estate  of  John  J.  Radford.  If  Jane  wasted  that  estate,  and  it 
could  be  made  to  api)ear  that  her  administratrix,  Hannah  Carlile,  received 
nothing  of  it,  the  securities  of  the  former,  and  not  the  latter,  would 
properly  be  responsible  for  the  devastavit.  But  the  bill  against  Hannah 
charges  that  she  received  the  money  and  chattels  which  had  been  in  the 
hands  of  Jane  Radford,  and  thereby  incurred  a  responsibility  to  answer 
for  the  debts  and  demands  against  her  intestate.  The  demand  of  plain- 
tilfis  fairly  asserted  against  the  representative  of  Jane  Radford,  and  as 
slie  has  not  denied  it,  she  must  abide  the  judgment  against  her. 

The  security,  Durant,  however,  occupies  a  different  position  in  this 
controversy.  As  he  was  not  a  party  to  the  proceedings  against  his 
principal,  he  is  not  absolutely  bound  by  them,  but,  under  the  decision  of 
the  Ordinary  vs.  Condy,  (b)  he  may  now  show  that  his  principal 
received  nothing  of  the  assets  of  the  estate  of  John  J.  Radford,  but  that 
hey  were  wasted  by  the  administratrix,  Jane.  He  is  not  concluded 
('0  Tost  380.     An.  (6)  Supra  41,  and  notes. 


*102]  TOBIAS   VS.   WOOD.  69 

by  the  proceedings  against  Hannah  Carlile,  but  may  show,  on  another 
trial,  that  his  principal,  having  reached  nothing,  should  have  been  amen- 
able for  nothing.  This  is  an  issue  which  depends  on  evidence,  to  be 
decided  by  a  Court  and  jury.  The  motion  to  set  aside  the  nonsuit  is 
granted. 

The  whole  Court  concurred. 

Thompson,  for  the  motion.     Yeadon,  contra. 

Note  : — The  notes  of  argument,  and  the  authorities  cited  by  the  counsel,  that 
the  Reporter  had  taken,  have  accidentally  been  mislaid,  and  cannot  be  found  so  as 
to  appear  with  this  case.  Repoetek. 


^*IsAAC   Tobias  vs.  James  Wood.  [*103 

An  affidavit  to  hold  to  bail,  stating  that  the  defendant  was  indebted  to  the  plain- 
tiff "in  the  sum  of  one  hundred  and  forty-five  dollars,  on  a  note  and  due  bill, 
bearing  interest,"  was  held  to  be  a  sufficient  compliance  with  the  Act,  and  an 
exoneretur  on  the  bail  bond  was  refused. 

Where  a  party  swears  that  the  defendant  is  indebted  to  him,  he  swears,  in  a 
legal  point  of  view  and  in  legal  parlance,  to  a  pi'esent  debt  that  is  due,  and  not 
a  future  one. 

Before  O'Neall,  J.,  at  Charleston,  May  Term,  1840. 

In  this  case  the  plaintiff  issued  a  writ  of  assumpsit  against  the  defend- 
ant ;  and  to  hold  him  to  bail,  annexed  to  it  the  following  affidavit : 

"The  State  of  South  Carolina.  Personally  appeared  before  me,  Isaac  Tobias, 
who  being  duly  sworn,  maketh  oath  and  saith  that  General  James  Wood  is  indebted 
to  him  in  the  sum  of  one  hundred  and  forty-five  dollars  on  a  note  and  due  bill, 
bearing  interest,  and  that  no  part  of  which  has  been  paid. 

I.  Tobias. 
Sworn  to  before  me  this  4th  September,  1839. 

Abraham  Moise. 

Under  this  proceeding  the  defendant  was  arrested  and  gave  bail.  The 
defendant  moved,  before  me,  to  have  an  e.roneretur  entered  on  the  bail 
bond,  "  on  the  ground  of  the  defectiveness  of  the  affidavit,  "(a)  The  motion 
was  overruled,  for  the  following  reasons.  "The  Act  of  1769,  (P.  L. 
273,  1768,)  Stat.  204,  §  20,  M.,  provides  that  no  person  shall  be  held  to 
bail  on  any  writ  of  capias  ad  respondendum  for  debt,  unless  an  affidavit 
shall  be  made  and  attested  by  some  Judge  or  Justice  of  the  Peace,  and 
endorsed  on  or  annexed  to  the  writ,  before  the  service  thereof,  of  the  sum 
really  due."  Was  the  question  res  Integra,  as  to  the  construction  of 
this  Act,  I  should  say  that  an  affidavit  of  the  sum  really  due,  without 
stating  the  manner  in  which  the  indebtedness  arose,  would  be  sufficient ; 
for  the  difference  in  its  phraseology  from  the  English  statute  on  the  same 
subject,  would  justify  that  difference  in  the  construction.  But  the  cases 
of  Feck  and  Hood  vs.  Van  Evour,  (1  N.  &  McC.  580,  Note  A,)  ruled 
that  the  affidavit  must  not  only  set  out  the  sum  due,  but  also  how  it 

(a)  1768.     7  Stat.  204,  §  20.     An. 


70  CHARLESTON,  FEBRUARY,  1841.      YOL.  I.  [*103 

acerned ;  and  to  that  I  yielded  my  assent  in  the  case  of  Saunders 
*inil  *'^s- Sughes,{a)  as  a  means  of  protecting  the  liberty  of  the 
^^*-l  citizen.  Does  the  affidavit  here  state  both  the  amount  due, 
and  also  the  manner  in  which  the  debt  accrued  ?  I  think  it  is  manifest 
it  does.  It  states  that  the  defendant  is  indebted  to  the  plaintiff  in  the 
sura  of  $145,  on  a  note  and  due  bill,  bearing  interest.  No  one  can  be 
mistaken  about  the  manner  of  the  indebtedness,  after  reading  the  affidavit. 
It  was  contended,  with  tlie  usual  ability  and  ingenuity  of  the  defendant's 
attorney,  that  the  affidavit  was  defective,  inasmuch  as  it  did  not  show 
that  the  notes  were  due.  I  thought,  however,  that  when  the  plaintiff 
swore  that  the  defendant  was  indebted  to  him,  he,  in  a  legal  point  of 
view,  and  in  legal  parlance,  swore  to  a  present  and  not  a  future  debt, 
and  that  therefore  there  was  no  defect  in  the  affidavit. 

lu  the  case  of  Woodfulk  vs.  Leslie,  (2  N.  &  McC  585,)  the  affidavit 
stated  that  the  defendant  was  indebted  to  the  plaintiff  $360,  as  the 
assignee  of  a  promissory  note.  In  that  case  my  brother  Richardson, 
referring  to  Peck  S  Hood  vs.  Van  Evour,  and  to  Sellon  and  to  Tidd, 
stated  the  rule  to  be  "that  to  hold  a  debtor  to  bail,  the  law  requires  that 
a  specific  sura  of  money  shall  be  charged,  and  the  cause  of  action  plainly 
set  forth  in  the  affidavit."  "These  indispensable  requisites,"  said  he, 
have  been  strictly  complied  with  in  the  affidavit  before  us."  Compare 
the  affidavit  in  that  case  with  the  affidavit  in  this,  and  if  there  is  any 
difference,  it  has  escaped  my  attention.  Changing  the  parties,  Judge 
Ilichardson's  decision  there  might  be  used  here. 

In  Loice  vs.  3Iayson,  (3  McC.  313,)  the  affidavits  states  that  notes 
were  found  among  the  papers  of  Arcliy  Mayson,  deceased,  by  which  it 
appears  that  Ramsey  L.  Mayson  is  indebted  to  the  said  Archy  Mayson's 
estate,  $2700.88,"  &c.  Judge  Johnson,  who  delivered  the  opinion  of 
the  Court  in  the  case  of  Peck  &  Hood  vs.  Van  Evour,  delivered  the 
judgment  of  the  Court  in  Lowe  vs.  Mayson.  After  referring  to  the  rule 
settled  in  Peck  &  Hood  vs.  Van  Evour,  he  said,  "  the  affidavit  in  this 
case  sets  out  in  general  terms  the  manner  in  which  the  debt  arose,  as  far 
as  the  plaintiff  can  be  supposed  to  be  conversant  with  it;  and  if  we 
regard  the  reasons  of  the  rule,  the  objects  are  as  fully  attained,  as  if  the 
notes  had  been  recited  with  the  utmost  minuteness.  Neither  the  dates 
nor  the  number  of  the  notes  would  enable  the  Court  to  judge  of  their 
♦1051  ^^"^'  efficacy,  and  if  *the  plaintiff  has  committed  a  perjury,  the 
-J  offence  can  as  well  be  assigned  on  this  affidavit,  as  if  it  had  con- 
tained them,  so  that  the  whole  object  of  the  rule  has  been  attained." 
Paying  a  due  regard  to  that  decision  would,  it  seems  to  me,  supersede 
any  difficulty  in  this  case.  The  affidavit  there  makes  no  other  allegation 
that  the  notes  were  due,  than  that  Ijy  referring  to  them  it  appeared  that 
defendant  "  is  indehled''  to  the  said  Archy  Mayson's  estate,  &c.  If  any 
more  precise  allegation  than  that  the  notes  were  due,  had  been  necessary, 
it  would  hardly  have  escaped  the  able  counsel  concerned,  or  the  experi- 
enced Judge  who  decided  that  case.  The  plaintiff,  as  administrator, 
could  not  have  asked  any  exception,  in  this  behalf,  in  his  favor,  for  he 
had  the  notes  in  his  possession,  and  could  therefore  speak  of  them  with 
certainty.    In  Saunders  vs.  Hughes,  (2  ]5ail.  504,)  the  affidavit  states  that 

(a)2BM.:>]A.     An. 


*105]  OWENS   vs.    HODGES.  71 

Col.  Joseph  Hughes,  of  the  firm  of  William  &  Joseph  Hughes,  stands 
justly  indebted  to  the  plaintiff  in  the  sum  of  $936.69,  due  on  a  note,  &c. 
No  objection  was  there  taken  to  any  want  of  certainty  in  setting  out  that 
the  notes  were  due.  I  have  looked  through  all  the  other  subsequent 
cases,  and  have  referred  to  the  excellent  digest  of  our  decided  cases,  pre- 
pared by  the  defendant's  attorney,  and  I  have  not  been  able  to  find  a 
case,  or  dictum,  which  requires  an  affidavit  to  set  out  more  than  is  done 
in  this  case. 

The  defendant  renews  his  motion  in  the  Court  of  Appeals  to  have  an 
exoneretur  entered  on  the  bail  bond,  and  to  reverse  my  decision  on  the 
ground  "that  the  affidavit  is  defective  in  substance,  inasmuch  as  it  does 
not  contain  any  allegation  that  the  notes  ivere  due.^' 

Rice,  for  the  motion,  cited  P.  L.  273.  Tidd's  Prac.  1  vol.  144,  145.  3  Chitty's 
Prac.  333,  334,  335.  Cliitty,  331,  333,  334.  Chitty  on  Bills,  572,  573-  2  Maul. 
&  S.  149.  7  Faust,  173 — as  to  form  of  affidavit.  Chitty's  Practice,  Appen.  Tidd's 
Append.  Archhold's  Forms,  8,  9,  of  the  remedy  when  the  affidavit  is  defective. 
1  Tidd  Prac.  164,  165.  Peck  vs.  Van  Evour,  1  N.  &  McC.  580.  1  Rice's  Dig.  97. 
3  McC.  318.     2  N.  &  McC.  585.     1  McC.  313.     2  Bail.  504. 

Moise,  contra. 

''^  Curia,  per-  O'Neall,  J.    In  this  case  we  are  entirely  satisfied  r^-in/^ 
with  the  decision  below;  and  concur  in  it,  for  the  reasons  assigned  '- 
by  the  Circuit  Judge  in  his  report  to  the  Court. 

The  motion  is  dismissed. 

The  whole  Court  concurred. 

See  Kerr  vs.  Phillips,  2  Rich.  199.     Rosenhury  vs.  McKain,  3  Rich.  149.     An. 


Solomon  Owens  vs.  Samuel  Hodges. 

Where  a  party  to  a  contract  stipulates  to  perform  one  or  more  things,  and  in 
the  event  of  non  performance  of  any  or  all  of  them,  agrees  to  pay  a  certain  simi, 

■  the  sum  agreed  to  be  paid  will  be  regarded  as  a  penalty,  and  not  as  liquidated 
damages. 

For  the  non-performance  of  a  contract,  the  party  failing  shall  pay  the  other  for 
any  loss  he  may  have  sustained,  and  this  loss  is  the  measure  of  damages.  If 
this  loss  has  been  ascertained  by  the  agreement  of  the  parties,  such  agreement 
shall  be  carried  into  effect,  otherwise  the  jury  will  assess  the  damages  from  a  full 
view  of  the  facts  and  circumstances  of  the  case. 

Before  Evans,  J.,  at  Marion,  Spring  Term,  1840. 

This  was  an  action  of  debt  on  a  bond  for  the  performance  of  an  award, 
and  will  be  sufficiently  understood  from  the  report  of  his  Honor,  the  pre- 
siding Judge,  and  the  bond,  award,  and  precedent  agreements  between 
the  parties,  copies  of  which  are  subjoined  to  the  report : 

This  case  depends  much  upon  written  contracts  between  the  parties, 
which  are  herewith  annexed.  The  facts  were  these:  The  defendant  was 
the  owner  of  a  mill  near  to  the  plaintiff's  fields.  The  fields  were 
reclaimed  marsh  land,  a  part  of  the  swamp  on  which  the  mill  was 
erected  ;  and  in  order  to  prevent  the  overflow  of  the  fields  by  the  water 


72  CHARLESTON,  FEBRUARY,  1841.      YOL.  I.  [*106 

j^,„^-,  from  the  mill,  in  December,  1834,  an  agreement  was  entered  into 
-I  *between  the  parties,  by  which  the  defendant  was  to  construct  a 
dam,  to  be  completed  by  the  1st  January,  ISSY.  The  dam  was  not  finished, 
and  a  controversy  arising  about  it,  the  matter  was  agreed  to  be  left  to  the 
arbitrament  of  Brown  and  Wheeler,  and  a  bond  entered  into,  to  perform 
the  award.  By  the  award,  the  work  was  to  be  completed  by  the  1st 
January,  1839,  according  to  the  original  contract;  and  on  failure  to 
complete  it,  the  defendant  was  to  pay  $5000.  The  only  alteration  in 
the  original  agreement  made  by  the  award,  was  this  extension  of  the 
time,  and  the  hands  which  the  defendant  was  to  furnish  to  work  on  the 
dam. 

The  action  was  to  recover  damages  for  not  completing  the  work 
according  to  the  original  agreement,  as  modified  by  the  award.  The 
plaintiff  contended,  that  he  was  entitled  to  recover  $5000,  as  stipulated 
damages.  I  did  not  think  so.  1st.  Because  there  were  many  things  to 
be  done,  and  it  was  unreasonable  to  suppose  the  parties  intended  that 
this  large  sura  should  be  paid  for  the  slightest  failure  to  complete  the  same 
in  any  minute  particular,  according  to  the  contract.  2d.  That  that  sum 
was  more  than  five  times  the  value  of  the  land,  when  the  dam  was 
finished. 

By  the  award,  Owens  was  to  furnish  so  many  hands,  and  Hodges  so 
many.  There  was  some  proof  that  Hodges  did  not  at  all  times,  have  as 
many  hands  at  work  as  he  was  to  furnish.  I  did  not  consider  this  as  mate- 
rial :  because,  if  he  had  finished  the  dam  by  the  1st  January,  1839,  there 
would  have  been  no  breach  of  his  agreement.  The  plaintiff,  Owens, 
having  performed  his  part,  was  entitled  to  recover  full  damages  for  the 
breach  on  the  part  of  defendant.  The  object  of  the  parties  was,  the  com- 
pletion of  the  dam  by  the  time  stimulated  ;  and  Hodges  was  bound  to 
furnish  the  necessary  laborers,  to  do  this  within  the  time.  There  were 
various  breaches  assigned.  Some  were  proved,  and  some  not.  The 
jury  gave  a  verdict,  I  think  for  about  four  hundred  dollars,  from  which 
the  plaintiff  appeals. 

AGREEMENT  OF  1834. 
South  Carolina,  Marion  District : 

An  agreement  is  hereby  made,  between  Solomon  Owens,  on  the  one  part,  and 
Samuel  IIo(l>,'es,  on  the  other  part,  to  wit :  The  said  Owens  doth  agree  to  furnish 
*10'^1  ^"^^''  f^""''  hands,  and  *provisions  and  tools  for  said  hands  :  the  said  Hodges 
doth  agree  to  furnish  four  good  hands,  and  two  others,  and  provisions  and 
tools  for  said  hands,  to  cut  a  canal,  and  make  a  dam  sufficiently  strong  and  high  to 
prevent  said  Hodges'  mill  water  fi-om  going  into  said  Owens'  fields,  from  an  old  dam 
known  and  called  David  Owens'  machine  dam,  to  a  point  of  land  extending  from 
the  hill  where  James  Alwood  lived,  by  the  upper  end  of  Price's  marsh;  said  canal 
and  dam  to  be  made  by  the  directions  of  said  Owens.  It  is  also  agreed  upon 
between  tlie  parties,  that  the  aforesaid  canal  and  dam  shall  be  completed  on  or 
before  the  first  day  of  January,  A.  D.  one  thousand  eiglit  hundred  and  thirty-six. 
In  eonliniiation  of  this,  our  agreement,  we  do  hereunto  set  our  hands  and  seals. 
December  loth,  1834. 

SOLOMON  OWENS,     [l.  s.] 
SAMUEL  HODOES.      [l.  s.] 
Witnesses,     i   W"'-';^"  Williamson, 

Upon  the  duo  and  deliberate  reflection  of  the  time  given  for  the  completion  of 


108] 


OWENS   VS.    HODGES.  73 


the  within  stipulated  work,  we  mutually  agree  to  extend  the  time  from^  the  first 
day  of  January,  A.  D.  183(j,  mentioned  within,  until  the  first  day  of  January,  A.  D. 
1837.     Witness  our  hands,  the  16th  day  of  December,  A.  D.  1835. 

SOLOMON  OWENS, 
SAMUEL  HODGES. 


•„,.^  (  John  A.  Cherry, 

Witnesses,     |  j^^^^_  -g^  ^^^^^^ 


B.  Wheeler. 
REFERENCE  AND  AWARD  OF  1837. 
State  of  South  Carolina,  Marion  District: 

Know  all  men  by  these  presents,  that  Samuel  Hodges  and  Solomon  Owens  are 
held  and  finnly  bound  one  to  the  other,  in  the  sum  of  one  thousand  dollars,  for  the 
payment  of  which  sum  well  and  truly  to  be  made,  we,  the  said  Hodges  and  Owens, 
bind  ourselves,  our  heirs,  executors,  and  administrators,  and  assigns,  firmly  by 
these  presents,  sealed  with  our  seals,  and  dated  the  9th  day  of  February,  A.  D. 
1837,  if  either  one  shall  fail  in  the  condition  underwritten.  The  condition  of  the 
above  obligation  is  such,  that  if  the  above  bound  Hodges  and  *Owens,  their  r4fir>q 
heirs,  executors,  administrators,  and  every  of  them,  shall  and  do  in  all  things,  '- 
well  and  truly  stand  to,  abide  and  perform  the  award,  order  and  arbitration  of 
William  Brown  and  Edward  B.  Wheeler,  arbitrators,  indifi'erently  named  and 
selected  by  the  said  Hodges  and  Owens,  to  determine  all  matters  and  things  in 
controversy,  concerning  a  contract  between  them ;  provided  the  award  of  the  said 
arbitrators  be  made  and  reduced  to  writing,  ready  to  be  delivered  to  the  said  par- 
ties, on  or  before  the  first  Monday  in  March  next ;  and  if  said  arbitrators  should 
disagree,  they  shall  call  in  an  umpire,  who  shall  decide  in  writing,  which  shall  be 
considered  binding  and  final ;  then  the  above  obligation  to  be  void,  else  remain  in 
full  force  and  virtue.     This  the  9th  February,  1837. 

SAMUEL  HODGES,      [l.  s.] 
SOLOxMON  OWENS,     [l.  s.] 

Witness,  Silas  Rogers. 

We  choose  the  following  persons  to  arbitrate  the  matters  stated  in  the  within 
bond :  William  Brown  and  E.  B.  Wheeler.     9th  February,  1 837. 

SOLOMON  OWENS, 
SAMUEL  HODGES. 
Witness,  Silas  Rogers. 

This,  the  3d  day  of  March,  1837,  we,  William  Brown  and  Edward  B.  Wheeler, 
the  arbitrators  chosen  as  above,  have  this  day  met  to  decide  ui^on  the  matters  and 
things  submitted  to  us,  to  wit :  an  agreement  made  and  entered  into  by  Samuel 
Hodges  and  Solomon  Owens,  dated  13th  December,  1834 ;  a  deed  from  Solomon 
Owens  to  Samuel  Hodges,  dated  13th  December,  1834 ;  also  a  deed  from  Samuel 
Hodges,  dated  13th  December,  1834.  From  the  terms  of  the  agreement  and  deeds 
of  conveyance,  above  recited,  we  are  decidedly  of  opinion,  that  the  consideration, 
as  explained  by  Major  Legget,  rendered  it  obligatory  on  Dr.  Hodges  to  complete 
the  canal  and  dam,  or  bank,  sufficiently  high  and  strong  to  protect  the  fields  of 
Solomon  Owens  from  the  mill  waters  of  said  Hodges,  commencing  at  an  old  dam 
known  as  David  Owens'  machine  dam,  to  a  point  of  land  extending  from  the  high 
hill  where  James  Alwood  lived,  by  the  upper  end  of  Price's  marsh.  The  time  has 
elapsed  by  which  the  work  was  to  be  completed.  *We  are  further  of  opinion,  j.^, ,  ^ 
that  the  said  Samuel  Hodges  has  made  default  in  not  completing  the  canal  '■ 
at  the  time  stipulated,  thereby  hazarding  damage  to  the  crops  of  said  Owens,  by 
the  overflow  of  the  fields  aforesaid.  We  accordingly  came  to  the  following  deci- 
sion :  that  Samuel  Hodges  do  complete  the  work  mentioned  in  said  agreement,  on 
or  before  the  1st  day  of  January,  1839,  (eighteen  hundred  and  thirty-nine  ;)  that 
during  the  time  allowed  for  completing  the  said  work,  the  said  Samuel  Hodges 
shall  pay  to  the  said  Owens  all  damages  which  may  occur  to  his  fields,  from  the 
overflow  of  the  waters  aforesaid,  the  damages  to  be  estimated  by  three  disinter- 
ested persons,  chosen  by  said  Owens  and  Hodges  ;  said  Hodges  to  furnish  a  com- 
petent overseer  to  superintend  the  work,  paying  for  the  hire  of  the  same  ;  and  in 
the  event  of  the  failure  of  said  Hodges  to  complete  the  work  within  the  time  above 


74  CHARLESTON,  FEBRUARY,  1841.      VOL.  I.  [*110 

specified,  he'shaU  pay  to  said  Owens,  or  to  Jus  heirs  and  assigns,  the  sum  of  Jive  thousand 
dollars.  We  declare,  also,  that  said  Owens  shall  furnish  four  hands  to  said 
Hodges,  to  work  on  said  canal,  whenever  said  Hodges  shall  notify  him  that  they 
are  wanted ;  and  upon  the  refusal  of  said  Owens  to  furnish  said  hands  to  said 
Hodges,  he  shall  forfeit  the  sum  of  one  thousand  dollars.  We  further  decree,  that 
said^Owens  shall  he  permitted  to  use  the  canal  or  hank  for  a  fence,  or  any  other 
purpose,  except  stopping  up  the  channel  of  said  canal.  We  further  decree,  that 
as  this  work,  when  completed,  is  for  the  purpose  of  draining,  we  consider  that 
said  Hodges  is  equally  bound  to  the  heirs  and  representatives  of  said  Owens,  as 
to  himself  now  living.*  And  we  further  award,  that  the  said  Solomon  Owens,  and 
the  said  Solomon  Hodges,  shall  each  execute  a  bond  in  the  sum  of  ten  thousand 
dollars,  the  one  to  the  other,  to  stand  to  this,  our  award,  and  to  fulfill  the  same. 
Witness  our  hands,  the  day  and  date  above  written. 

EDWARD  B.  WHEELER. 

WILLIAM   ><'  BROWN, 
mark. 
Witness,  Levy  Leggett, 

BOND  ON  WHICH  THE  ACTION  IS  BROUGHT. 
Hie  State  of  South  Carolina,  Marion  District,  \ 

Know  all  men  by  these  presents,  that  I,  Samuel  Hodges,  am  held  and  firmly 
^^^  bound  unto  Solomon  Owens,  in  the  full  *and  just  sum  often  thousand  dol- 
-•  lars,  to  be  paid  to  the  said  Solomon  Owens,  his  certain  attorney,  executors, 
administrators  and  assigns,  for  which  payment  well  and  truly  to  be  made  and 
done,  I  bind  mys(>lf,  my  heirs,  executors  and  administrators,  firmly  by  these 
presents,  sealed  with  my  seal,  and  dated  the  sixth  day  of  March,  A.  D.  eighteen 
hundred  and  thirty-seven,  if  the  said  Samuel  Hodges  shall  fail  in  the  performance 
of  the  condition  underwritten. 

The  condition  of  the  above  obligation  is  such,  that  if  the  said  Samuel  Hodges 
sliall  well  and  truly  do,  perform  and  observe,  what  is  enjoined  in  the  award  and 
arbitrament  of  E.  B.  Wheeler  and  William  Brown,  for  said  Samuel  Hodges  to  do, 
]><'rform  and  observe,  as  stated  in  the  award,  which  award  is  dated  the  '61  day  of 
March,  A.  D.  1837 ;  then  the  above  obligation  to  be  void,  or  else  to  remain  in  full 
force  and  virtue. 

SAMUEL  HODGES.      [l.  s.] 

Signed,  sealed  and  delivered  in  presence  of 

C.   W.   Dudley. 

GROUNDS  OF  APPEAL. 

1.  That  liis  Honor  misdirected  the  jury  upon  the  law,  in  charging  them  that 
the  sum  of  jjiSOOO,  specified  in  tlie  condition  of  the  bond,  was  not  stipulated 
damages,  but  a  iikmo  penalty. 

2.  Tliat  his  Honor  furtlier  (mt(h1  in  instructing  the  jury,  tluxt  upon  the 
proper  construction  of  the  modilication  of  tlie  original  contract,  the  defendant 
was  not  bound  to  furnish  his  liands,  but  tliut  tlie  plainlifl' was  bound  to  furnish 
for  the  wliole  time;  ami  that  the  defendant  was  only  bound  to  do  what  the 
plainlilf's  hands  couhl  not  acconiplisli  Mitliin  tluit  time. 

H.  'J'hat  various  breaclu's  of  the;  award,  and  more  especially  the  breach  for 
which  the  damages  of  $:}iHn)  were  stipulated,  were  fully  proved,  and  that  the 
)>Iainti(r  was  therefore  entitled  to  recover,  at  least,  the  full  amount  of  the 
damages  stipulated. 

Mr.  Attorney  Gen.  liaihi/,  for  the  motion,  said,  is  a  specified  sum  in  award  to 
1h«  roiisiden.d  as  a  penalty  or  as  li(iuidated  damages?  He  contended  that  it  was 
lifpiidatrd  dama^'os;  and,  in  support  of  his  position,  cited,  2  Bail.  Rep.  293,  Allen 
«H.)i  v.^.  lirnzicr  ^  Randolph;  2  Bos.  k  Pul.  3.')1,  Astlei/ vs.  *Wpldon;  also,  2  Term 
Kep.  32 ;  4  Ibirrf.ws,  222s  ;  :<  Taunt.  4i;it ;  3  Jiarn  &  Aid.  (;!)2.  Ho  argued  that 
it  VTM  necessary  to  look  into  the  intention  of  the  parties— that  the  sum  of  SjfiOOO  was 
to  cover  the  value  of  tb.;  land,  or  secure  the  plaiiitifl"  for  the  amount  that  it  would 


*112] 


OWENS    VS.   HODGES.  75 


cost  liim  to  have  the  work  completed.     He  Scaicl,  the  principle  that  the  damages 
cannot  exceed  the  value  of  the  land,  is  a  novel  and  erroneous  one. 

Ilarlhe,  contra,  cited,  Bac.  Abr.  Tit.  Con.  letter  F. ;  2  B.  &.  P.  354;  G  Bing.  141, 
242 ;  G  Barn.  &  Cress.  21G  ;  IB  Eng.  Com.  L.  Rep.  10  J.  57  ;  Bac.  Abr.  Tit.  Admrs. 
and  Arb.  letter  F.  ;  147,  3  J.  N.  Y.  Rep.  297.  It  will  be  considered  as  a  penalty 
when  several  things  are  to  be  done,  and  a  large  sum  is  specified. 

Thompnon,  same  side,  said,  a  contract  to  establish  stipulated  damages,  oiight  to 
be  strictly  construed.  The  acts  to  be  done  were  to  be  done  by  the  plaintiff,  as 
well  as  the  defendant.  The  plaintiff  only  forfeits  $1000,  and  by  incurring  it,  he 
would  make  the  defendant  liable  for  $5000 :  cited  Chitty  on  Con.  337  ;  7  Wheat. 
15.  He  contended  further,  that  a  sum  in  gross,  is  rather  to  be  considered  as  a 
penalty,  than  as  stipulated  damages.  There  is  not  a  word  in  the  award  which 
would  show  that  stipulated  damages  was  to  be  paid. 

The  bond  he  alleged,  was  void,  from  uncertainty.  Time,  he  urged,  where  it 
enters  into  a  contract,  and  a  certain  specified  sum  is  named,  it  is  to  be  regarded 
as  stipulated  damages.  Mr.  T.  litre  referred  to  and  commented  at  length  on  the  author- 
ities cited  by  his  colleague,  Mr.  Ilarllee. — Reporter. 

Bailey,  in  reply,  said,  the  word  penalty  was  frequently  construed  to  mean 
liquidated  damages,  and  hence  the  only  way  to  arrive  at  a  correct  intei'pretation 
of  the  matter  was  to  take  the  intention  of  the  parties. 

Curia,  per  Evans,  J.  This  was  an  action  of  debt  on  a  bond,  for 
the  performance  of  an  award.  From  the  evidence,  it  appeared  that  the 
phiintiff  was  the  owner  of  some  reclaimed  land  in  a  swamp,  on  which 
the  defendant  had  erected  a  mill.  The  plaintiff's  land  was  inundated  by 
the  water  discharged  from  the  mill  pond.  To  obviate  this,  an  agreement 
*was  entered  into,  by  which  the  defendant  agreed  to  construct  a  r^jci-io 
dam,  from  a  place  called  David  Owens' machine  dam,  to  another  '- 
point  described  in  the  agreement,  each  of  the  parties  to  furnish  a  certain 
numl)er  of  hands,  and  the  work  to  be  executed  under  Owens'  direction. 
The  agreement  is  dated  in  December,  1834,  and  the  work  was  to  be  fin- 
ished by  the  1st  January,  183T.  The  work  was  not  finished,  and  in 
Pebruary,  1837,  the  parties  agreed  to  refer  the  matter  to  the  arbitrament 
of  Wheeler  and  Brown,  and  entered  into  a  penal  bond  to  each  other,  in 
the  sum  of  one  thousand  dollars,  to  perform  the  award.  In  iMarch  the 
arbitrators  made  their  award  by  which  Hodges  was  directed  to  finish  the 
work  by  the  1st  January,  1839.  Some  slight  modifications  were  made 
in  the  original  contract,  but  none  material  to  this  case.  The  award 
concludes  as  follows  :  "  And  in  the  event  of  the  failure  of  the  said 
Hodges  to  comjilete  the  work  within  the  time  specified,  he  shall  })ay  to 
the  said  Owens  the  sum  of  five  thousand  dollars,"  and  "  upon  the  refusal 
of  the  said  Owens  to  furnish  his  hands  to  tlie  said  Hodges,  he  shall  forfeit 
the  sura  of  one  thousand  dollars  ;"  and  "we  further  award  that  the  said 
Owens  and  Hodges  shall  each  execute  a  bond  in  the  sum  of  ten  thou- 
sand dollars,  the  one  to  the  other,  to  stand  to  this  our  award,  and  to 
fulfill  the  same."  Tiiis  bond  was  executed,  and  upon  it  this  action  was 
l)ronght,  setting  out  four  breaches  of  the  condition.  1st.  That  the  dam 
was  not  extended  to  David  Owens'  machine  dam.  2nd.  That  it  was  in- 
sufficient, it  leaked  and  was  not  high  enongh  3rd.  It  was  not  made 
according  to  Owen's  direction.  4th.  Defendant  did  not  furnish  as  many 
hands  as  he  was  bound  to  do  according  to  the  contract. 

A  great  deal  of  evidence  on  the  trial  was  given  on  all  these  points. 
The  defendant  had  made  a  dam  within  the  time,  as  he  contended,  accord- 


76  CHARLESTON,  FEBRUARY,  1841.      VOL.  I.  [*113 

iug  to  the  contract.  The  plaintiff  contended  that  if  he  proved  a  breach 
oAhe  condition  of  the  bond,  he  was  entitled  to  recover  the  sum  of  five 
thousand  dollars,  as  stated  or  assessed  damages.  The  case  was  tried 
before  me  at  Marion,  and  I  charged  the  jury  that  the  sura  of  five  thou- 
sand dollars,  which  the  arbitrators  had  awarded  to  be  paid,  on  the  failure 
of  the  defendant  to  finish  the  work  within  the  time  stated,  was  but  a 
penalty,  and  that  they  should  assess  for  the  plaintiff  only  such  damages 
as  were  equivalent  to  the  injury  which  he  had  sustained.  The  verdict 
*1 1  J.1  ^^''^^  "^  conformity  with  the  charge,  and  a  motion*  has  been  made 
*  -I  in  this  Court  for  anew  trial,  on  the  ground  of  misdirection  in  the 
particular  above  stated.  In  cases  where  a  party  to  a  contract  stipu- 
lates for  the  performance  of  one  or  more  things,  and  in  the  event  of  the 
non-performance,  agrees  to  pay  a  certain  sum,  it  is,  in  most  cases,  exceed- 
ingly difficult  to  determine  whether  the  sura  be  in  the  nature  of  a  pen- 
alty,' or  damages  liquidated  or  ascertained  by  the  parties.  By  penalty,  I 
understand  a  forfeiture  for  non-performance.  Formerly,  the  verdict  at 
Law  was  for  the  penalty,  and  the  party  had  no  relief  except  in  Equity. 
But  now,  under  the  statute,  where  any  thing  but  the  payment  of  money 
is  to  be  done,  the  plaintiff  must  submit  the  condition  of  his  bond,  or 
covenant,  to  a  jury,  who  are  to  assess  the  damages,  at  the  value 
of  the  injury  actually  sustained.  In  cases  where  damages  are  said  to 
be  liquidated,  the  province  of  the  jury  to  inquire  and  assess,  has  been 
superseded  by  the  parties,  who  had  themselves  ascertained  and  assessed 
the  damages.  To  distinguish  between  these  two  classes  of  cases,  has 
always  been  found  exceedingly  difficult,  and  I  do  not  find,  in  looking 
through  the  cases,  that  any  clear  and  definite  line  can  be  drawn  between 
them.  In  most  of  the  cases,  as  in  Allen  vs.  Brazer,  et  ah,  and  in  Loive 
vs.  Fierce,  (2  Bail.  293  ;  4  Bur.  2225,)  where  a  single  act  was  to  be 
done,  as  the  delivery  of  a  negro,  or  to  pay  so  much  if  the  defendant 
married  any  other  than  the  plaintiff,  the  sura  has  been  regarded  as 
damages  assessed  by  the  parties;  yet  this  cannot  be  laid  down  as  an  iu- 
fIoxil)lc  rule,  for  it  will  readily  occur  to  every  one  that  if,  in  the  case  of 
Allen  vs.  Brazer,  the  sum  to  be  paid  if  the  negro  was  not  delivered,  had 
been  one  tliousand  dtjllars  instead  of  one  hundred  dollars,  such  sura  must 
be  construed  a  jicnalty.  So,  also,  in  most  of  all  the  cases  where  several 
things  are  to  be  done,  and  for  tlie  non-performance  of  any  or  all  of  them, 
a  certain  sum  was  to  be  paid,  the  sum  of  money  has  been  regarded  as  a 
jifnalty.  Such  is  the  case  of  Astleij  vs.  Weldoj},  (2  Bos.  &  Pul.  346,) 
where  the  defendant  had  stipulated  to  perform  at  the  plaintiff's  theatre — 
to  altciid  rehearsals,  &c.,  and  in  default  to  pay  two  hundred  pounds.  The 
same  |»riii(.-i|)N;  lias  been  held  in  a  great  variety  of  cases,  both  English  and 
American,  which  arc  to  be  found  collected  in  Comyn  on  Contracts,  38, 
47.  Such  a  contract  ns  that  we  arc  now  considering,  is  to  be  interpreted 
like  every  other;  and  in  that,  as  well  as  others,  the  true  inquiry  is,  what 
*ll.Sl  '"'^  **'^  I»arties  intend  ?  *and  where  such  intention  can  be  ascer- 
tained, the  Law  will  give  it  eflect  accordingly.  Taking  this  as 
our  guide,  let  us  then  intjuire  whether  the  sum  of  five  thousand  dollars  is 
in  the  nature  of  a  i)enalty,  or  liquidated  damages?  By  the  contract 
Ilo.iges  was  bound  to  do  several  things.  He  was  to  make  a  dam  from 
Alwood's  point,  by  Trice's  marsh,  to  Owens'  machine  dam.  The  dam 
was  to  1)0  of  sufficient  height  and  tightness  to  protect  Owens'  field  against 


*115] 


OWENS   VS.    HODGES. 


the  inundation  of  the  water.  It  was  to  be  made  under  Owens'  direction. 
Hodges  was  to  furnish  an  overseer,  and  a  certain  number  of  liands  ;  and 
lastly,  the  dam  was  to  be  finished  by  the  1st  January,  1839.  Now,  ac- 
cording to  the  literal  interpretation  of  this  contract,  the  defendant  was 
bound  to  pay  the  penalty,  if  he  failed  in  the  performance  of  any  one  of 
tiicse  undertakings.  If  he  had  made  the  dam  in  full  performance  of  his 
agreement,  in  every  particular,  except  that  on  the  1st  January,  1839,  a 
very  small  portion  which  would  not  cost  ten  dollars,  remained  unfinished, 
according  to  the  plaintiff's  demand  he  must  ])ay  five  thousand  dollars. 
If  a  small  portion  of  it  leaked,  and  the  plaintiff  by  it  was  but  little 
injured,  or  if  he  had  made  the  dam  perfect  within  the  time,  but  yet  had 
disobeyed  the  plaintiff's  directions,  or  had  omraitted  for  a  single  day  to 
furnish  his  portion  of  hands  to  work,  each  of  these  would  subject  him  to 
the  payment  of  the  whole  sum,  and  for  failure  of  all  of  them,  he  would 
incur  no  other  or  greater  liability.  It  seems  to  me,  it  is  only  necessary 
to  state  the  proposition,  to  determine  at  once  that  the  sum  of  five  thou- 
sand dollars  could  not  have  been  the  estimate  which  the  parties  them- 
selves, or  the  arbitrators,  had  assessed,  as  the  true  damages  which  the 
}ilaintifiF  was  to  sustain.  It  may  be  that  that  sum  was  the  estimate  of 
Owens'  loss,  if  the  dam  was  not  constructed  at  all,  but  they  never  could 
have  intended  the  defendant  should  pay  as  much  for  failure  in  part,  how- 
ever inconsiderable,  as  for  default  in  the  whole.  I  do  not  perceive  that 
this  case  diifers  in  the  result  from  the  other  cases,  by  the  circumstance 
that  after  the  award,  and  in  pursuance  of  it,  a  bond  in  ten  thousand  dol- 
lars was  entered  into  to  secure  the  performance  of  the  award.  It  is  said 
there  are  two  sums,  and  therefore  both  cannot  be  penalties.  Though  it 
strikes  me  it  cannot  alter  the  case,  it  removes  some  of  the  difficulties  in 
the  way  of  construing  the  contract :  as  the  plaintiff  desires,  the  same 
absurdity  of  making  the  damages  for  a  part,  equal  to  the  whole,  still 
remains.  I  do  not  *perceive  the  reason  why  this  should  have  been  r*-|  -i  ^ 
done,  or  why,  indeed,  any  second  bond  was  necessary  to  secure  '- 
the  performance  of  this  award,  except  that  the  first  was  in  too  small  a 
sura,  and  as  a  second  bond  was  necessary,  they  directed  it  to  be  in  con- 
formity with  what  is  usual,  in  double  sura. 

The  general  rule  is,  that  for  the  non-performance  of  a  contract,  the 
party  failing  shall  pay  the  other  for  any  loss  he  may  have  sustained,  and 
this  loss  is  the  true  measure  of  damages.  If  this  loss  has  been  ascer- 
tained by  the  agreement  of  the  parties,  such  agreement  shall  be  carried 
into  effect.  If  there  be  no  such  agreement,  then  the  jury  are  to  assess, 
upon  a  full  view  of  the  circumstances  of  the  case.  Justice  requires  a  full 
indemnity,  but  nothing  beyond  ;  and  hence,  in  the  latter  cases,  the  incli- 
nation of  the  Courts  is  to  consider  the  sum  agreed  to  be  paid,  rather  as 
a  penalty,  than  as  liquidated  damages,  unless  the  intent  seems  to  be 
otherwise. 

In  this  case  we  are  of  opinion  the  instruction  of  the  Circuit  Judge  was 
right,  and  the  motion  is  dismissed. 

The  whole  Court  concurred. 

See  as  to  stipulated  damages.  Worrell  vs.  McClenaghan,  5  Strob.  115  ;  Allen  vs. 
Brazier,  2  Bail.  293.     Salterwhite  vs.  McKee,  Harp  397. 

As  to  the  quantum  of  damages.     Miller  vs.  Billiard  Sj'  Wade,  Chev.  152.     An. 


78 


CHARLESTON,  FEBRUARY,  1841.      VOL.  I.  [*117 


*117]  *TnoMAS  Kennerly  vs.  JoHisr  "Walker. 

Wliere  a  verdict  has  been  obtained  against  two  defendants,  upon  a  joint  and 
several  promissory  note,  and  judgment  has  been  entered  up  against  both,  and 
upon  appeal,  a  new  trial  is  ordered,  unless  the  plaintiff  discontinues  as  to  one  of 
the  defendants:  Held,  that  the  plaintiff  should  discontinue  before  ''scire facias'' 

is  brought.  ,  ,    ,         ^       -,        xi_    ^  •  i 

To  permit  a  discontinuance  of  one  defendant  to  a  record  to  be  entered  on  the  trial 

of  a  ''scire  facias,"  upon  the  plea  of  nul  tiel  record,  would  be  irregular. 
A  general  demurrer  to  a  special  replication  to  the  plea  of  "7iul  tiel  record,''  will  be 

sustained,  unless  the  replication  denies  the  plea. 

Before  Gantt,  J.,  at  Barnwell,  Spring  Term,  1840. 

This  was  a  scire  facias  to  revive  a  judgment  entered  up  against  the 
defendant,  John  Walker,  and  one  Mary  Gavin,  on  the  30th  October, 
1826.  The  original  action  was  on  a  joint  and  several  promissory  note, 
in  which  the  plaintiff  obtained  a  verdict,  at  Fall  Term,  1826,  and  entered 
up  judgment  accordingly.  The  defendants  on  the  trial,  moved  for  a 
nonsuit^  because  the  note  was  not  proved  as  to  Mary  Gavin,  which  being 
refused,  they  appealed,  and  made  the  same  motion  in  the  Court  of 
Appeals,  on  the  same  ground.  The  Court  of  Appeals  were  of  opinion 
that  the  testimony  was  not  sufficient  to  entitle  the  plaintiff  to  a  verdict 
against  Mary  Gavin.  "  But  if  it  is  a  joint  and  several  note  he  may 
retain  his  verdict  against  Walker,  by  discontinuing  as  to  Miss  Gavin  ; 
otherwise  the  motion  must  be  granted."  On  the  13th  March,  1835,  the 
])laintiff  sued  out  his  writ  of  sci7'e  facias  in  this  case  against  Walker 
alone,  to  revive  the  judgment,  to  which  the  defendant  pleaded  nul  tiel 
record,  on  which  issue  was  joined.  At  the  July  Terra,  1838,  the  plain- 
tiff ol>tained  a  rule  on  the  defendant,  to  show  cause  on  the  first  day  of 
the  next  term,  why  the  name  of  Mary  Gavin  should  not  be  stricken  from 
the  record.  The  case  stood  thus  until  Spring  Term,  1839,  when  the 
plaintiff  obtained  an  order  for  leave,  until  the  first  day  of  October  (then) 
next,  to  put  in  a  sjjccial  replication  to  tlie  plea  filed  by  the  defendant. 
The  plaintiff  accordingly  filed  the  following  special  replication  :  "  And 
the  said  Tiiomas  Kennerly,  as  to  the  said  plea  of  the  said  John  Walker, 
by  him  above  pleaded,  saith,  that  he,  the  said  Thomas,  by  reason  of  any 
thing  by  the  said  John  in  that  plea  alleged,  ought  not  to  barred  from 
*118l  *''^^'"o  ^"J  maintaining  his  action  against  him,  the  said  John, 
-J  because  he  saith,  that  although  upon  inspection  of  the  record,  it 
appears  that  the  verdict  in  this  case  was  against  John  Walker  and  Mary 
Gavin,  yet  the  Court  of  Appeals,  being  moved  by  the  defendants  to  set 
aside  tlie  verdict,  concurred  in  the  opinion  that  the  testimony  was  not 
sufficient  to  entitle  the  ))laintiff  to  a  verdict  against  Mary  Gavin,  but 
they  say,  if  tjic  note  is  joint  and  several,  the  plaintiff  may  retain  his 
verdict  a-rainst  Walker,  by  discontinuing  as  to  Mary  Gavin  ;  and  this 
the  said  Thomas  is  ready  to  verify  before  the  Court  here,  and  thereupon 
he  prays  that  judgment  be  given  by  the  said  Court  "  To  this  plea  the 
defendant  filed  a  general  demurrer,  in  which  the  plaintiff  joined. 

The  case  came  on  Itefore  his  Honor,  Judge  Gantt,  who,  upon  reading 
the  opinion  of  the  Court  of  Ai)peals,  in  conYormity  with  the  order  of  that 
Court,  gave  the  plaintiff  leave  to  discontinue  as  to  Mary  Gavin,  and  gave 
judgment  on  the  pleadings  and  evidence  for  the  plaintiff. 


*118]  KENNERLY    VS.    WALKER.  79 

The  defendant  appeals,  and  moves  to  reverse  tlie  judj^ment,  because, 

1.  The  plaintiff  was  not  entitled  by  law  to  discontinue  as  to  Marj'  (jiavin. 

2.  On  the  pleadings  and  evidence,  the  judgment  ought  to  have  been  for  the 
defendant. 

The  foregoing  report  consented  to  by  the  plaintiff's  attorney,  with  the 
statement  which  follows : 

The  action  was  brought,  originally,  by  Martin  <fe  Hay,  and  by  Martin,  the 
survivor  of  that  firm,  (on  his  promotion  to  the  bench,)  consigned  to  the  present 
attorney  for  the  plaintiff. 

The  case  stood  upon  the  docket,  marked  new  trial,  until  Fall  Term,  1834, 
•when  it  was  discontinued,  and  before  the  present  disposition  thereof,  has  not 
been  urged  to  a  conclusion  by  either  party.  The  opinion  of  the  Court  of 
Appeals  not  obtained  during  the  pendency  of  this  suit  previous  to  Spring 
Time,  1840. 

Patterson,  for  the  motion,  on  the  first  ground,  contended  that  it  was  necessary  to 
discontinue  before  the  plaintiff  could  sustain  his  action  of  ' ^ scire  facias,^ ^  and  that 
by  the  order  nisi  of  the  Appeal  Court,  he  could,  within  a  year  and  a  day,  have 
*executed  that  order  ;  neither  was  it  necessary  for  the  party  to  apply  to  the  p^-, ,  q 
Court  for  order  of  discontinuance.  No  discontinuance  being  made  within  a  "- 
year  and  a  day,  a  nonsuit  followed.  After  the  lapse  of  twelve  or  fourteen  years, 
it  was  supposed  to  be  necessary  to  have  the  order  of  the  Circuit  Court. 

2.  On  the  pleadings,  the  defendant  is  entitled  to  judgment  they  do  not  fortify 
the  declaration.  Mr.  P.  then  pointed  out  a  variance  in  the  judgment  and  the 
declaration.  The  judgment,  he  contended,  was  against  two,  and  the  declar- 
ation against  only  one.  He  cited  Com.  Dig.  Tit.  Plead.  47 ;  and  farther  contended, 
that  unless  the  replication  denied  the  plea,  the  judgment  upon  the  demurrer 
should  be  sustained. 

Mr.  Gantt,  contra,  was  absent. 

Curia,  per  Earle,  J,  The  object  of  the  motion  made  in  the  Circuit 
Court  for  leave  to  discontinue  as  to  Mary  Gavin,  was  to  make  the  record 
nniform  to  the  declaration,  which  set  out  a  judgment  against  John 
Walker  alone.  No  doubt  the  plaintiff  might,  after  the  judgment  of  the 
Court  of  Appeals,  have  entered  his  discontinuance  as  to  Mary  Gavin,  and 
thus  liave  retained  his  verdict  against  Walker.  That  judgment  was 
pronounced  in  1826.  Within  what  length  of  time  the  plaintiff  should 
have  discontinued  as  to  Gavin,  in  order  to  avail  himself  of  tlie  benefit  of 
the  decision,  we  will  not  undertake  to  determine  here.  It  would  seem 
at  least  that  such  discontinuance  should  have  been  entered  before  he 
brought  his  sci.  fa.  in  1835,  at  any  time  during  that  period.  I  appre- 
hend the  defendant  would  have  been  permitted  to  sign  judgment  of 
nonsuit,  as  the  Court  said  "otherwise  (that  is,  if  the  plaintiff  do  not 
discontinue  as  to  Gavin,)  the  motion  must  be  granted."  We  think  it 
was  irregular  to  permit  such  discontinuance  to  be  entered  on  the  trial  of 
the  sci.  fa.  upon  the  plea  of  nul  tiel  record.  There  was  no  such  record 
as  had  been  declared  on,  and  the  plaintiff"  was  not  entitled  to  the  indul- 
gence of  being  permitted  to  alter  it  so  as  to  make  it  conform  to  the 
count. 

Independently  of  that  view  of  the  plaintiff's  case,  we  are  very  clear 
that  the  demurrer  to  the  plaintiff's  replication  ought  to  have  been  sus- 
tained. The  very  object  of  pleading  is  to  set  forth  the  facts  necessary 
to  the  party's  recovery.  Every  *material  fact  should  be  distinctly  r^y^r. 
averred,  that  it  may  be  traversed  by  the  other  side.  When  the  ^  " 
plaintiff",  therefore,  sought  to  avail  himself  of  the  J lulgmeii I  of  the  Court 
of  Appeals,  in  his  replication,  he  should  have  averred  that  the  note  sued 


80  CHARLESTON,  FEBRUARY,  1841.      YOL.  I.  [*120 

on  was  a  joint  and  several  note,  and  that  in  fact  he  had  discontinued  as 
to  Mary  Gavin.  These  were  both  material  averments  when  he  was  about 
to  offer"^in  evidence  a  record  and  judgment  against  two,  jointly,  to  support 
a  declaration  which  set  out  a  judgment  against  one.  If  in  truth  lie  had 
regularly  discontinued  before  he  brought  his  set.  fa.,  it  would  have  been 
a  judgment  against  Walker  only,  and  a  special  replication  would  have 
been  unnecessary.  Upon  the  pleadings,  the  plaintiff  was  not  entitled  to 
judgment.  The  motion  to  set  aside  is  granted  ;  and  it  is  ordered  that 
ihe''defendant  have  leave  to  sign  judgment  on  demurrer. 

O'Xeall,  Evans  and  Butler,  JJ.,  concurred. 

See  Treasurers  vs.  Buckner,  2  McM.  325,  1  Rich.  307.     An. 


James  Robertson  &  Co.  vs.  Robert  S.  Millar. 

Where  there  is  conflicting  testimony  as  to  the  genuineness  of  a  signature,  com- 
parison of  handwriting  is  admissible,  as  confirmatory  evidence,  to  enable  the 
jury  to  decide  upon  which  of  the  witnesses  they  could  most  confide. 

A  bundle  of  notes  that  is  admitted  to  prove  the  genuineness  of  a  signature,  by 
comparison  of  handwriting,  may  be  sent  to  the  jury. 

Before  his  Ilonor,  the  Recorder,  tried  in  the  City  Court,  November 

Term,  1840. 

This  was  an  action  of  assumpsit  against  the  defendant,  as  indorser  of  a 
note,  ot  which  the  following  is  a  copy  : 

*121]  '^Charleston,  Qlh  March,  1840. 

280  dollars.  Five  days  after  date,  I  promise  to  pay  Robert  S.  Millar 
or  order,  two  hundred  and  eighty  dollars,  for  value  received. 

William  Boyd. 
(Endorsed)  7?o6er^  S.  Millar. 

James  Robertson  &  Co. 
Pica — The  general  issue.     Defence — Forgery. 

The  following  is  the  evidence  : 

liirhard  W.  Corjdcll,  sworn— Said  ho  is  teller  of  the  Bank  of  the  State  ;  has  fre- 
qti.Mitly  seen  defendant's  handwriting  in  the  bank  ;  has  seen  notes  on  which 
Millar'H  nauie  was,  vvlujre  Boyd's  was  not;  thinks  the  name  of  Millar  on  this  note 
in  lii.H  liaii.lwritiiig;  would  have  had  no  hesitation  in  taking  it  as  his;  he  is,  and 
wa«  at  tlie  tiiiK^  of  the  protest  of  this  note,  notary  of  the  bank  ;  proves  the  protest ; 
jjavo  notice  of  non-payment  to  Millar,  in  person  ;  Millar  said  he  was  not  prepared 
t«)  pay  it;  said  notliing  of  forgery;  in  presenting  other  notes  on  several  other 
occaHir)ns,  Millar  referred  to  a  memorandum. 

CroM-eraininid—\\v.  Haid  he  never  saw  Millar  write  ;  judges  it  is  his  handwriting 
from  its  Hiinilarity  to  otlier  notes,  wliich  were  not  disputed,  and  which  he  has  been 
in  lli.<  habit  of  nci-ing  in  bank  ;  tlie  protest  was  before  ]?oyd's  death. 

\V,IU<im  li.  Fostrr,  sworn— Haid  he  ncjver  saw  defendant  sign  his  name ;  has  seen 
hU  name  ofl.-n  in  bank  ;  Hli(,iild  say  tliis  was  his  signature  ;  has  seen  his  name  for 
yearH  paat  in  bank  ;  witnosH  is  discount  clerk  of  Bank  of  the  State. 

A.  C.  i>mith,  Hwora— Said  ho  is  clerk  in  the  Union  Bank  ;  this  indorsement  of 


121] 


ROBERTSON  &  CO.    VS.    MILLAR.  81 


Millar  bears  the  character  of  liis  handwriting  ;  has  seen  notes  of  defendant  which 
were  admitted  to  be  genuine  ;  has  had  such  in  his  possession  ;  never  saw  this  note 
before  to-day. 

Robert  S  Smith,  sworn — Said  he  has  seen  defendant's  signature  to  notes  which 
he  knows  to  be  genuine  ;  has  seen  him  write,  and  should  not  hesitate  to  say  that 
this  endorsement  is  his  handwriting  ;  would  have  taken  it  in  business  as  genuine  ; 
has  received  friendly  notes  from  defendant. 

*Robert  Quash,  sworn —  Said  he  is  clerk  of  plaintiffs  ;  recollects  that  plain-   _^,  r,„ 
tiff  received  notice  of  protest ;  he  was   sent  to  defendant  to  notify  him ;   '- 
defendant  said,  "  Boyd  is  sick,  and  if  he  would  wait  a  few  days  there  would  be 
some  freight  from  Columbia,  and  as   soon  as  it  came   it  should  be  arranged;" 
witness  did  not  show  the  note  to  Millar. 

Here  closed  the  evidence  of  plaintiff. 


William  Young,  sworn — Said  he  is  defendant's  only  clerk;  attends  to  all  his 
business  ;  knows  all  the  paper  he  has  out ;  has  charge  of  all  his  notes  ;  has  seen 
Millar  write  ;  this  endorsement  is  not  his  writing  ;  never  saw  him  wi-ite  like  this  ; 
thei'e  are  marks  there  which  he  never  saw  him  make  ;  (these  he  pointed  out  to 
the  jury  ;)  witness  kept  a  book  of  all  notes  of  Boyd,  on  which  Millar  was  endorser ; 
this  note  is  not  in  that  book. 

A  bundle  of  notes  on  which  Millar  was  endorser,  which  had  passed  through 
bank,  were  here  submitted  to  witness,  to  prove  the  signatures  genuine,  with  a 
view,  by  comparison,  to  aid  the  testimony  to  disprove  the  handwriting  of  Millar. 
This  was  objected  to  by  Mr.  Yeadon.  I  overruled  the  objection,  and  the  witness 
proved  the  signatures  genuine.  The  witness  then  pointed  out  to  the  jury  wherein 
the  difference  consisted. 

He  continued — The  day  that  Boyd  wa§  taken  sick,  three  notes  on  which  Millar 
was  endorser,  became  payable  ;  he  went  to  Boyd's  office  to  ask  if  he  was  not  going 
to  send  for  renewals ;  he  met  Vinro,  who  said  that  Boyd  had  gone  home  sick ; 
that  his  clerk  had  gone  up  to  him,  and  he  supposed  he  would  attend  to  the  re- 
newals at  night;  there  were  protests  for  about  $2000  more  than  was  justified  by 
his  entries ;  this  created  suspicion  ;  went  the  week  after  and  got  statements  from 
all  the  banks  except  the  Bank  of  the  State ;  there  were  several  notes  not  on  his 
list ;  he  tried  to  get  a  statement  from  Boyd  in  1839,  but  could  not ;  several  months 
before  Boyd  was  taken  sick,  Millar  stopped  endorsing  new  business  ;  may  be  a 
year;  though  he  continued  to  endorse  all  renewals  that  corresponded  with  the 
book. 

Cross-examined — He  said  he  has  been  with  the  defendant  since  the  fire  of  1838  ; 
was  with  his  brother  from  1832  ;  began  with  his  book  of  notes  endorsed  in  January, 
1839;  about  *sixty  days  from  that  time  he  found  that  he  was  $4000  on  r^-igo 
Boyd's  paper;  he  then  determined  to  stop;  he  knew  what  were  renewals  '- 
from  the  book ;  never  saw  him  endorse  a  new  note  for  Boyd  after  sixty  days  from 
the  1st  January,  1839  ;  he  said  he  would  not. 

Cross-examined — Mr.  Yeadon  presented  him  a  note  to  John  M'Nellage,  of  Boyd, 
endorsed  by  Millar,  dated  19th  September,  1839,  at  four  months,  for  $140,  and 
asked  him  if  the  endorsement  was  genuine  ;  he  said  it  was,  and  that  it  was  a 
renewal,  and  referred  to  his  book,  and  showed  what  note  it  was  the  renewal  of; 
he  said  Boyd  was  in  the  habit  of  sending  up  notes  to  be  endorsed,  marked 
"renewal,"  and  when  he  got  them  would  tear  that  part  off;  Boyd  did  send  up 
four  or  five  months  before  his  death  a  note  to  be  endorsed  to  buy  a  boat,  which 
Millar  refused  to  endorse  ;  Boyd  died  22d  March,  1840. 

Here  closed  the  evidence  of  defendant. 

EVIDENCE  IN  KEPLT. 

W.  W.  Kunhardt,  sworn — Said  that  he  held  Boyd  to  bail  for  John  M'lS^ellage, 
and  that  he  released  him  on  his  giving  him  the  note  of  19th  September,  1839, 
endorsed  by  Millar ;  this  was  the  origin  of  that  note. 

Cross-examined — He  said  he  got  the  note  from  Boyd  ;  had  no  communication 
with  Millar. 

Vol.  I.— 7 


82  CHARLESTON,  FEBRUARY,  1841.      YOL.  I.  [*123 

William  Bird  vs.  Robert  S.  Millar. 

This  was  an  action  of  assumpsit  against  defendant,  as  endorser  of  a 
promissory  note,  of  which  the  following  is  a  copy  : 

Charleston,  12th  March,  1840. 
250  dollars.     Thirty  days  after  date,  I  promise  to  pay  to  Robert  S. 
Millar  or  order,  two  hundred  and  fifty  dollars,  for  value  received. 

WILLIAM  BOYD. 
(Endorsed,)  Robt.  S.  Millar, 

W.  Bird. 

Plea — The  general  issue.     Defence — Forgery. 

The  evidence  in  the  foregoing  case  of  James  Robertson  &  Co.,  is  con- 
sidered as  given  in  this  ;  the  bundle  of  notes  introduced,  objected  to  and 
admitted. 

*Robert  S.  Smith,  the  only  witness  examined  in  this  case,  being  s-n-orn — 
J  Said  he  believes  the  endorsement  to  be  the  handwriting  of  defendant ;  would 
take  it  as  his  without  any  hesitation  ;  witness  was  loading  a  boat  for  Bird  ;  while 
he  was  loading  it,  Boyd  bought  it ;  Bird  would  not  let  him  have  it  without  an  en- 
dorsement ;  Millar's  endorgement  was  given,  and  the  boat  deliA-ered  ;  thinks  the 
note  in  suit  is  a  renewal  of  that,  because  Boyd  gave  Bird  an  order  on  him  for  §65, 
the  up  freight  of  that  boat  to  Camden ;  after  this  note  came  out  of  bank,  he 
talked  with  Millar  on  the  subject ;  he  said  that  the  note  that  came  out  of  bank 
was  not  endorsed  by  him,  but  recollected  endorsing  an  original  note  to  Bird ;  this 
conversation  was  after  Boyd's  death. 

These  two  cases  were  submitted  to  the  jury  on  the  evidence,  and  they 
found  for  the  defendant  in  both  cases. 

The  i)laintili''s  counsel  served  me  with  the  annexed  grounds  of  nppeah 

JACOB  AXSOX,  Recorder. 

1.  That  his  Honor  erred  in  ruling  that  comparison  of  handwriting  was 
adniissilde  to  di.taprove  the  genuineness  of  defendant's  signature  in  these  cases. 

2.  That  his  Honor  erred  in  allowing  the  defendant  to  submit  to  the  jury,  in 
these  cases,  a  bundle  of  notes  alleged  to  have  been  signed  or  endorsed  by  hiin, 
in  order  iluit  the  jury  by  comparison,  might  iufer  the  forgery  of  his  signature, 
or  hantl  writing  to  the  notes  sued  on. 

3.  'J'hat  the  verdicts  were  contrary  to  law  and  evidence. 

Ymdon,  for  the  appellants,  argued  that  comparison  of  handwriting  was  not 
.ndniissililn  to  prove  its  genuineness,  and  in  support  of  this  position,  cited  2 
Stark!.!,  (jrj4 ;  IVake  Kv.  lOfj  ;  Phil.  Ev.  428  ;  13  J.  R.  238  ;  2  McC.  518.  He  con- 
tended also  tliat  it  would  be  setting  a  dangerous  precedent  to  suffer  handwriting 
to  \Hi  jirovcd  ],y  iomi)arison.  Defendants  could  always  select,  and  plaintiffs  could 
not,  to  such  an  extent. 

A.  Moisn,  contra,  cited  Nor.  Peake,  155 — (25  Appendix.) 

Curia,  per  Evans,  J.  The  facts  of  these  cases  are,  the  defendant  was 
*1251  '*"*''*'  ""  *^^°  notes,  as  the  endorser  of  one  Boyd.  *0n  the  trial, 
■J  witnesses  were  examined  on  both  sides ;  those  for  the  plaintitf 
declaring  their  belief  that  the  signature  was  the  defendant's,  and  those  for 
the  dclenihinl,  that  tiie  signatures  were  forged.  A  bundle  of  other  notes 
were  handed  to  a  witness  for  the  defendant.  He  proved  them  to  be 
genuine,  and  then  pointed  out  to  the  jury  the  difference  of  Millar's  sig- 
nature to  those  notes  and  the  signatures  on  the  disputed  notes.     Wheu 


*125]         IIERRIOTT  AND  PATTERSON  ads.  THE  STATE.  83 

the  jury  retired  to  their  room,  they  were  allowed  to  take  the  bundle  of 
notes  with  them,  "that  they  might  compare  the  handwriting  of  them  with 
the  handwriting  of  the  notes  in  suit,  with  a  view  to  test  the  accuracy  of 
Young's  (the  witness  for  defendant,)  testimony."  The  admissiljility  of 
this  evidence,  and  its  being  allowed  to  go  to  the  jury  room,  are  the 
grounds  upon  which  the  case  comes  to  this  Court. 

The  general  principle  is  to  be  found  in  all  the  elementary  books,  in 
Starkie  and  Peake,  that  mere  comparison  of  handwriting,  by  juxta- 
position, is  inadmissible  ;  that  is,  where  the  witness  has  no  knowledge  on 
the  subject,  he  shall  not  be  allowed  to  prove  a  signature  genuine  or  false, 
by  comparing  it  with  what  another  witness  proves  to  be  the  true  signa- 
ture. Admitting  the  principle  to  be  correct,  that  such  evidence  is 
inadmissible  in  the  first  instance,  yet,  in  a  case  of  conflicting  evidence, 
this  kind  of  evidence  was  admitted  in  the  case  of  Plunket  &  Boivmun,  (a) 
uot  as  original,  but  as  confirmatory  evidence,  to  enable  the  jury  to4]eoide 
upon  which  of  the  witnesses  they  could  most  confide.  In  a  practice  of 
many  years,  I  have  not  known  the  admissibility  of  this  kind  of  evidence, 
for  the  purposes  above  stated,  questioned.  I  have  made  these  remarks 
because  this  question  was  much  discussed  by  both  sides,  on  the  argument. 
The  case  itself  may  be  decided  on  a  ground  entirely  independent.  The 
question  was,  whether  the  note  was  endorsed  by  the  defendant  ?  The 
witnesses  on  both  sides  were  acquainted  with  the  handwriting  of  Millar. 
The  witnes.s.  Young,  testified  the  signature  was  not  Millar's.  lie  was 
well  acquainted  with  handwriting.  The  object,  as  I  understood  the 
report  of  the  Recorder,  of  submitting  the  notes  to  the  witness  was,  that 
he  might  point  out  to  the  jury  the  difference  between  the  notes  in  dispute 
and  tlie  genuine  signatures,  and  in  this  way  to  test  the  accuracy  of  his 
opinion  that  the  notes  were  forged.  If  the  notes  were  admissible  for 
this  purpose,  I  can  see  no  reason  why  they  should  not  be  sent  *to  r^ig^ 
the  jury.  (6)  It  is  the  usual  practice  to  send  all  written  or  docu-  L 
meutary  evidence  to  the  the  jury,  unless  there  is  some  confusion  in  it 
likely  to  mislead. 

The  motion  is  dismissed. 

Gantt,  O'Xeall,  Earle,  and  Eichardson,  JJ.,  concurred. 

See  Desbrow  vs.  Farrow,  3  Rich.  383.     An. 


James  Herriott  &  James  Patterson  ocls.  The  State. 

Any  agreement  to  fight  with  loaded  pistols,  and  aetnallj  fighting  in  i>nrsuance, 
constitutes  a  duel  under  the  Act.  A]id  it  does  not  depend  upon  the  time  when 
the  agreement  was  made,  but  upon  the  fact  of  the  agreement. 

The  circumstances  attending  a  figliting  with  pistols,  and  the  intention  of  the  par- 
ties, are  (xuestions  of  fact  to  he  left  to  the  jury. 

In  the  City  Court,  Charleston,  before  his  Honor  the   Recorder,  July 

Term,  18-10. 

The  defendants  were  indicted  for  fighting  a  duel;  the  following  is  the 
testimony  : 

(a)  2  McC.  518  ;  Post  473.     An.  (5)  See  10  Rich.  21J.     An. 


84  CHARLESTOX,  FEBRUARY,  1841.      TOL.  I.  [*126 

.'^olomon  Moses,  sworn— Testified  lie  knows  the  defendants.  On  the  night  of  the 
24th  May  last,  was  with  the  jury  in  the  Court  as  attending  constable;  between 
Twelve  aiid  one  o'clock,  was  called  and  requested  to  go  next  morning  to  the  west 
end  of  Broad  street,  that  there  was  to  be  a  duel  or  posting,  and  the  informant  had 
no  doubt  there  wouKl  be  bloodshed.  Joseph  Yates  was  with  him  that  night  when 
he  received  the  information,  and  accompanied  him ;  on  their  way  there  saw  Fell, 
Gibbes,  Herriott  and  Patterson ;  followed  Gibbes  and  Fell  until  they  got  beyond 
Trapman's,  theythen  stopped.  Fell  took  out  a  paper  and  stuck  it  up  on  a  lamp 
post,  witness  and  Yates  were  between  the  two  parties.  Herriott  and  Patterson 
were  approaching.  Fell,  about  this  time,  put  his  hand  in  his  waistcoat,  and  wit- 
^, .,..,  ness  saw  "a  pistol ;  he  threatened  to  arrest  him.  *Herriott  and  Patterson 
'J  were  distant  from  them  al^out  the  length  of  the  court  room,  (City  Hall;) 
thev  turned  and  walked  away  through  Savage  street,  and  stopped  at  a  little 
distance  ;  Fell  and  Gibbes  came  along.  Gibbes  followed  Herriott  and  Patterson 
down  Savage  street.  Gibbes  promised  him  that  nothing  should  be  done  that 
morning,  and  witness  went  away.  Herriott  and  Patterson  went  down  Savage 
street  :  the  others  up  Broad  street;  there  was  some  excitement  at  the  time  the 
paper  was  put  up. 

r,o^s-e.rnmii)f(l — Knows  nothing  of  his  own  knowledge  about  the  duel.  From 
what  he  saw,  he  should  say,  the  ol)ject  of  the  parties  was  to  post.  The  paper  was 
taken  town ;  don't  know  by  whom ;  no  one  saw  the  paper  but  the  posters  who 
put  it  up. 

Joseph  Yates,  sworn — Testified  :  went  trith  Moses  ;  before  they  got  to  King  street, 
met  the  two  Herriotts  and  Patterson  ;  did  not  know  at  the  time  that  they  were  the 
l>arties  concerned ;  he  and  Moses  went  to  the  west  end  of  Bi-oad  street,  and  sat 
down  near  Trapman's  fence  for  some  time  ;  Moses  said  he  did  not  think  they  would 
come,  and  propos(>d  to  go  home ;  Moses  left  witness  and  went  towards  home  ;  after 
Mosi'S  left  him,  lie  saw  Fell  and  Gibbes  get  out  of  a  buggy  at  Matthews'  stables ; 
lie  went  after  Moses  and  called  him  back.  When  they  returned,  saw  Fell  and 
Gibbes  at  the  lamp-post  beyond  Trapman's.  Gibbes  asked  Moses  what  brought 
him  there  ?  Moses  said,  to  stop  bloodshed;  Gibbes  said,  this  is  no  child's  play; 
there  is  some  other  place  besides  Broad  street.  Gibbes,  Fell,  witness  and  Moses, 
walked  to  the  corner  of  Savage  street ;  the  two  Herriotts  and  Patterson  were  half 
way  down  Savage  street ;  Gibbes  went  and  spoke  to  Herriott  and  Patterson; 
the  iithers  went  on  ;  Gibbes  overtook  them  ;  Moses  went  home,  and  witness  went 
as  far  as  the  gate  of  tlie  Catholic  Church ;  looked  back  and  saw  Herriott  and 
Patterson  come  up  Logan  street,  to  the  corner  of  Broad  street ;  Gibbes  and  Fell 
tlien  returned  towards  them ;  all  five  met  at  the  corner  of  Logan  and  Broad 
streets  ;  (lilibes  and  Patterson  spoke  together,  and  they  all  went  down  Broad 
stre<-t,  towards  Trapman's.  Witness  followed  them  ;  when  they  got  to  Trapman's, 
all  went  on  except  the  younger  Herriott,  and  stopped  at  the  lamj^-post.  Fell  went 
towards  lUitledge  i^treet.  Herriott  remained  at  the  lamp-post.  Patterson  and 
*12b]  ^'''''"■*'  ^^■'"■'^  "^  conversation.  *Saw  Gibbes  walk  towards  Fell  and  return  to 
the  l.tmi»-post.  Thought  they  were  conversing.  They  stood  there  about  five 
niimites.  Witness  turned  round  to  see  who  was  coming,  and  heard  two  pistols  in 
quirk  siirc.'ssi(.n;  lie  innnediately  ran  towards  them;  met  Gibbes  and  the  younger 
H.-rriott  running  up  Broad  street;  Gibbes  said  lie  was  going  for  Dr.  Frost ;  Herriott 
juiked  hiiii  to  go  iij.  anrl  stoj.  thi-  blood;  the  elder  Herriott  was  leaning  on  Patterson's 
hhould.T;  hf  was  shot  in  the  clicek.  Patterson  asked  witness  to  walk  down  and 
j.ick  up  til.-  jii^tols  ;  he  i.icked  up  four  pistols  ;  saw  Fell  have  a  paper  in  his  hand  ; 
did  n..t  .*.•.■  liim  j.ost  it  up;  just  before  they  fired.  Fell  was  standing  with  back  to 
tlir  west,  H.-rriolt  with  back  to  the  east;  Gibbes  and  Patterson  were  standing  off, 
forming  n  si|uari-  witli  the  others. 

r,-....../  ,„„,/,„,/_Sjiid  )„•  was  on«  hundivd  and  fifty  yards  from  them  when  they 

fire-l ;  tliey  Were  five  or  ten  minutes  at  the-  lamp-post  before  they  fired ;  saw  no 
preparntiojiH  to  take  distance. 

Jt'i'iil  A.  JU„,,^  sworn— 'i'estificd  an.l  said  he  lives  near  the  spot ;  saw  Patterson 
and  H.Trif.tt  jmssing  to  tbe  west  end  of  Broad  street,  towards  Kutledge  street;  saw 
wliat  pr..v.-d  to  b.-  Fell  ami  Gibbes  at  the  lami>-po.st ;  I'atterson  and  Herriott  returned, 
and  ronver-.-d  a  little  ;  waw  Fell  go  up  to  tb.-  lami)-i>ost  with  a  paper  in  his  hand, 
aH  if  to  i-iU  it  up ;  he  withdrew  liis  hand,  still  holding  the  paper ;  Patterson  and 


I 


*128]         HERRIOTT  AND  PATTERSON  ads.  THE  STATE.  85 

Horriott  walked  a<;;ain  to  the  west,  stopped  and  conversed ;  Ilerriott  remained  and 
Patterson  returned,  spoke  to  the  others,  and  then  returned  to  Herriott ;  tliey  both 
walked  on  and  returned  to  Rutledge  street ;  Patterson  then  returned  and  Herriott 
followed  hiin ;  Patterson  went  up  to  Fell  and  Gibbes  and  staid  a  short  time  and 
returned,  and  met  Herriott  and  conversed  together  ;  they  then  both  ieturn(;d  to  the 
lamp-j)ost ;  when  the v  got  within  ten  or  twelve  paces,  Herriott  halted ;  Patterson 
approached  Fell  and  Uibbes  ;  about  a  half  minute  passed ;  Herriott  retained  his 
position.  Patterson  and  Gibbes  went  into  the  middle  of  the  street ;  each  opposite 
the  one  he  was  with  ;  Herriott  and  Fell  retained  their  positions ;  when  Patterson 
and  Gibbes  were  nearly  opposite  their  respective  friends,  they  faced  about ;  a 
second  after  the  pistols  were  discharged.  Herriott  went  towards  Patterson  and  fell 
in  his  arms  ;  the  whole  affair  occurred  in  ten  or  twelve  minutes  ;  the  position  of 
the  gentlemen  formed  a  square. 

Here  the  testimony  closed  :  defendants  offered  no  evidence. 

*It  is  a  mistake  on  the  part  of  defendant's  counsel,  that  I  r^ciQa 
charged  as  attributed  to  me,  in  his  first  and  second  grounds.  L 

There  was  a  good  deal  said  on  that  subject  in  the  course  of  the  argu- 
ment, by  way  of  inquiry  on  ray  part  for  information  as  to  some  positions 
assumed  in  the  science  of  duelling,  and  by  way  of  comment  on  the 
authorities  produced  ;  but  I  certainly  did  not  charge  the  jury  on  that 
subject. 

When  it  was  submitted  to  the  jury,  I  charged  them,  that  if  they 
believed,  from  the  evidence,  that  these  parties  fought  in  pursuance  of  a 
previous  agreement  to  do  so,  that  it  was  a  duel  within  the  meaning  of 
the  Act ;  it  did  not  depend  upon  the  time  when  the  agreement  was  made 
but  upon  the  fact  of  the  agreement ;  or  in  other  words,  that  if  they 
believed  that  the  said  parties  went,  the  one  with  a  view  to  post,  and  the 
other  to  resist  it,  and  the  posting  was  superseded  by  an  agreement  to 
fight,  and  they  did  fight,  that  it  was  fighting  a  duel  within  the  meaning 
of  the  Act,  and  that  the  defendants  were  obnoxious  to  the  penalties  of 
the  law. 

Tlie  jury  found  the  defendants  guilty,  and  they  appealed  on  the 
following  grounds  : 

1.  His  Honor,  the  Recorder,  charged  the  jury  that  a  duel  might  well  be, 
•where  death  ensues  to  one  of  the  principals,  and  the  slayer  will  not  be  guilty  of 
murder. 

2.  His  Honor  directed  the  jury,  that  if  two  men  agree  to  settle  a  present 
dispute  by  an  immediate  appeal  to  arms,  and  they  forthwith  fight  with  unequal 
weapons,  it  is  a  duel,  aud  one  may  be  killed,  and  the  slayer  be  well  convicted 
of  manslaughter. 

3.  That  the  only  evidence  of  a  duel  or  agreement  to  fight,  was  wholly  cir- 
cumstantial, and  if  to  be  relied  on,  only  proved  an  affray  or  riot. 

Wilson,  for  the  motion,  said  that  a  duel  was  a  single  combat,  at  a  fixed  time 
and  place,  in  consequence  of  a  challenge.  That  the  custom  came  originally  from 
the  northern  nations,  among  whom  it  was  usual  to  decide  all  their  controversies 
by  arms.  There  were  pledges  given  on  their  respective  behalf.  He  said,  that 
among  the  Germans,  Danes  and  Francs,  none  but  women,  sick  persons  and 
cripples,  and  those  under  twenty-one,  and  over  sixty  years,  were  excused. 
Ecclesiastics,  *monks  and  priests,  were  obliged  to  find  champions  in  their  r^ion 
stead.  The  penalty  of  the  vanquished  was  either  death  by  hanging  or  '- 
beheading,  or  mutilation  of  members,  according  to  the  circumstances  of  the  case. 

The  definition  of  duelling — vide,  English  Die.  Tit.  Duelling.  Duel,  Mr.  W. 
argued,  at  present  is  issued  for  single  combat,  or  some  private  combat,  and  must 
be  premeditated  ;  otherwise  it  is  but  a  rencounter.  Duelling,  in  this  last  sense, 
had  its  origin  in  the  year  1527,  at  the  breakmg  up  of  the  treaty  between  Charles 


86  CHARLESTON,  FEBRUARY,  1841.      VOL.  I.  [*13() 

T'.  and  Francis  7.  Tlie  former  informed  the  herald  of  the  latter,  that  he  would 
lie'reafter  consider  him  not  only  a  base  violater  of  public  faith,  but  a  stranger 
to  the  honor  and  intesritj  of  a  gentleman.  Francis  returned  his  herald  with  a 
cartel  of  defiance,  in  wiiicli  he  gave  the  usurper  the  lie  in  foi-m,  challenged  him  to 
single  combat,  requiring  him  to  name  his  time  and  place  and  his  weapons.  Cited 
2  Chitty's  Crim.  Law,  727  ;  3  lb.  348. 

Bailei/.  Attorney  General,  contra,  said  the  Court  will  consider  the  meaning  of 
the  Legislature,  and  determine  whether  this  is  a  duel  under  the  Act  of  1812.  It 
is  not  t'iie  light  in  which  the  duellist  regards  duelling  that  is  to  govern,  Imt  the 
Court  is  to  look  to  the  intention  of  the  Legislatm;e  upon  the  subject,  and  construe 
the  Act  accordingly.  Mr.  B.  contended  that  any  rencounter  that  follows  from  a 
posting  is,  of  itself,  a  duel. 

Curia,  per  Richardson,  J.  This  Court  concurs  with  the  Recorder, 
in  his  definition  of  a  duel.  Any  agreement  to  fight  with  loaded  pistols, 
and  actually  fighting  in  pursuance,  constitutes  a  duel  under  the  Act. 
The  question  was  one  of  fact  for  the  jury  to  decide.  A  challenge  had 
passed  and  was  said  to  be  refused  ;  the  challenger  threatened  to  post  his 
opponent.  The  ])arties  repaired  to  a  certain  spot  with  loaded  pistols, 
attended  by  their  respective  friends,  early  in  the  morning.  They  were 
seen  to  form  a  square  ;  the  principals  stood  face  to  face,  east  and  west  of 
each  other  ;  the  apparent  seconds  stood  to  the  right  or  left  of  their 
principals  respectively.  I  should  have  before  stated,  one  of  the  apparant 
seconds,  upon  one  party  being  intercepted  by  the  officers,  had  before 
said  it  was  no  child's  \)\aj  ;  there  is  some  other  place  besides  Broad 
*iqi-]  street;  *and  that  a  paper  was  put  up  before  the  fight  and 
-'  immediately  taken  down.  But  standing  in  the  position  I  have  de- 
scriljed,  tlie  principals  fired,  and  both  were  wounded.  This  may  have 
been  a  sudden  rencontre  arising  out  of  the  posting.  But  the  challenge, 
the  preparation  of  pistols,  the  attending  of  friends,  the  time  of  day,  and 
the  conduct  of  the  respective  parties,  also  indicate  a  concerted  duel  ;  and 
the  jury  having  decided  under  proper  instructions,  that  it  was  a  duel,  the 
Court  cannot  interfere  with  their  wholesome  finding,  and  the  motion  for 
a  new  trial  is  refused. 

The  whole  court  concurred. 

See  State  vs.  Cunningham,  2  Sp.  253.    An. 


S.  D.  GuiMKE  t)s.  Henry   Houseman. 

Where  a  trespass  for  lioating  a  slave  lias  been  clearly  proved,  without  any  legal 
jiistifleation,  and  the  jury  find  a  verdict  for  the  defendant,  a  new  trial  will  be 
granted. 

Before  llicii.uiusoN,  J.,  at  Charleston,  January  Term,  1811. 

This  was  an  action  of  trespass  for  beating  the  plaintiff's  slave.  The 
trespass  wus  clearly  proved,  and  I  could  perceive  no  cause  to  justify  the 
delendant,  iililiough  there  appeared  some  extenuating  circumstances. 
The  case  wus  sulimitted  to  tlie  jury,  under  the  charge 'that  they  should 
find  somelhing  fur  the  plaintilf.  They  thought  dillcrently  and  found  for 
the  defendant. 


*131]  GRIMKE    VS.    HOUSEMAN.  87 

The  plaintiff  appeals,  on  the  grounds  : 

1.  Because  the  verdict  of  the  jury  was  contrary  to  the  charge  of  his  Honor 
and  to  law. 

2.  Because,  inasmuch  as  the  trespass  was  proved  and  not  rebutted  by  contra 
testimony,  they  were  bound  to  find  for  *the  plaintiff,  if  it  were  but  uuni-  r*ioo 
iiial  damaoes.  L 

3.  Because  the  verdict  was  otherwise  contrary  to  law  and  evidence. 

Curia,  per  Butler,  J.  It  was  proved  beyond  doubt  tliat  tlie 
defendant  had  been  guilty  of  an  unjustifiable  trespass  on  tlie  ]>laintiff's 
property.  I  can  see  very  little  to  excuse,  and  nothing  to  justify  his  con- 
duct, lie  undertook,  by  unauthorized  violence,  to  redress  the  grievance 
of  his  own  slave,  not  at  the  time  when  the  insolence  complained  of  was 
offered,  but  with  deliberation,  he  pursued  the  plaintiff's  servant  and  beat 
her  in  her  own  house.  Common  courtesy  required  tliat  he  should  have 
coniplained  to  the  plaintiff,  if  he  bad  any  cause  of  complaint,  before  he 
took  redress  in  his  own  hands.  The  great  object  of  the  law  is  to 
give  security  to  the  enjoyment  of  property,  free  from  an  illegal  inter- 
ference with  it  against  the  consent  of  the  owner.  The  position  of  a  man 
enables  him  generally  to  maintain  a  practical  control  and  protection 
over  his  own  property  without  appealing  to  the  law.  But  a  woman 
must  look  to  the  law  alone  for  protection  when  her  rights  are  invaded 
and  her  feelings  insulted  by  one  who  has  neither  a  sense  of  justice,  or 
courtesy  to  respect  them  ;  and  it  would  be  a  reproach  to  the  adminis- 
tration of  justice,  were  a  jury  allowed  to  find  against  such  a  plaintiff, 
where  she  had  established  an  undeniable  cause  of  action.  It  will  not  do 
for  the  law  to  allow  redress  and  permit  its  tribunals  to  deny  it.  Frivo- 
lous actions  should  not  be  countenanced,  but  juries  must  respect  the 
legal  position,  and  even  technical  right  of  parties  in  Court.  In  the  case 
under  consideration,  the  plaintiff  established  a  clear  legal  cause  of 
action,  and  the  jury  had  no  right  to  find  for  the  defendant.  Such  is  the 
purport  of  the  decision  in  the  case  of  Norrel  vs.  Thoinjjson,  (2  Hill, 
470,)  that  if  a  trespass  be  proved,  the  plaintiff  is  entitled  to  some 
damages,  though  they  may  be  nominal  ;  and  when  in  such  case,  the  pre- 
siding judge  instructed  the  jury  that,  as  the  trespass  was  inconsiderable, 
they  might  find  for  the  defendant,  which  they  did,  a  new  trial  was 
granted. 

My  brother  O'Xeall  has  mentioned  to  me  another  case,  tried  at  New- 
berry, more  like  this,  but  much  stronger  for  the  defendant.  The  plain- 
tiff's negro  was  whipped  by  a  patrol.  It  appeared  that  the  negro  had  a 
ticket  at  the  time,  which  did  *not  designate  the  place  he  should  go  ;  r^.-inr> 
the  defendant  thought  the  ticket  legally  insufficient,  and  whipped  ^  '^ 
the  slave  ;  the  jury  found  a  verdict  for  the  defendant,  which  was  set  aside 
by  the  Court  of  Appeal,  on  the  ground  that  the  defendant  had  no  legal 
justification,  and  that  the  jury  were  bound  to  find  something  for  plaintiff; 
which  was  the  result  of  a  second  trial. 

The  motion  in  this  case  is  granted. 

The  whole  Court  concurred. 

James  Rhctt,  for  the  motion.     Kunhardf,  contra. 

See  Watson  vs.  Hamilton,  G  Ricli  82.  Elliott  vs.  Wadham,  2  Sp.  108,  1  N.  & 
McC.  85.     An. 


8S  CHARLESTON,  FEBRUARY,  18J:1.      VOL.  I.  [*133 

S.  D.  King  &  Co.  vs.  C.  H.  Colding. 

Parol  evidence  is  inadmissible  to  explain  a  written  contract,  or  to  vary  it,  unless 
where  there  is  ambiguity. 

Before  Evans,  J.,  at  Barn  well,  Fall  Term,  1840. 

This  was  an  action  of  assumpsit  on  a  joint  and  several  note,  signed  by 
the  defendant  and  three  or  four  others.  The  note  was  for  about  $3000, 
dated  in  December,  ]  837,  and  due  some  months  after.  The  other  makers 
of  the  note  had  confessed  judgment.  On  the  left  hand  of  the  signatures, 
certain  figures  in  pencil  were  made  in  a  line  with  the  signatures,  which 
were  added  up  at  the  bottom,  and  made  the  sum  for  which  the  note  was 
given.  The  defendant  offered  parol  evidence  to  prove  the  note  was 
given  for  the  sum  of  the  several  ]iurchases  made  by  the  signers  ;  that  the 
tigures  opposite  to  each  name  showed  the  amount  of  the  several  pur- 
chases, and  that  at  the  time  the  note  was  made,  it  was  agreed  between 
the  payors  and  payees,  that  although  the  note  was  joint  and  several,  for 
*T?i1  ^^'®  whole  amount,  yet  the  payors  were  to  be  *severally  liable  for 
-^  no  greater  amount  than  their  respective  purchases,  as  indicated 
by  the  figures  in  pencil.  This  I  rejected,  as  varying  the  written  contract 
by  patrol ;  and  the  def.ndant's  counsel  gave  me  notice  of  appeal. 

BeJUnger,  the  counsel  for  the  motion,  being  absent,  Northrop  argued  this  case. 
He  contended  that  the  figures  in  i;)encil  were  to  be  considered  as  a  part  and  parcel 
of  the  note,  and  not  a  memorandum.  If  the  note  had  been  as  a  joint  note  and 
opposite  each  signature  tlie  amount  was  placed  in  iigures,  parol  testimony  would 
1>e  allowed  to  explain,  it  being  of  a  doubtful  character.  He  said  the  consideration 
sliould  be  looked  into.  Cited  here,  Harper's  Rep.  293 ;  1  Bail.  537.  Parol 
evidence  was  admitted  to  explain  written  ;  2  Bail.  305  ;  4  McCord,  409  and  473. 

Patterson,  contra,  submitted  the  case  without  argument. 

Curia,  per  Evaks,  J.  Tlie  figures  in  pencil  opposite  to  the  names  of 
the  signers  of  the  note  were  probably  intended  to  indicate  the  amount  of 
the  several  jjurchases  of  each,  but  there  was  no  repugnance  between  this 
and  the  body  of  the  note.  They  created  no  ambiguity,  and  if  they  had, 
it  was  not  such  an  ambiguity  as  parol  evidence  is  admissible  to  explain. 
Tlie  note  was  a  common  joint  and  several  note,  and  the  evidence  offered 
was  to  vary  it,  to  make  it  a  several  note  of  each  of  the  signers,  for  sums 
which,  when  added  together,  would  make  up  the  whole  sum  which  the 
Kcvoral  signers  had  jointly  and  severally  promised  to  pay.  This  was 
clearly  inadmissil)le,  and  the  motion  is  dismissed. 

The  whole  court  concurred. 

See  Post  4G7  ;  2  Strob.  123  ;  2  Bail  342,  305  ;  5  Rich  511.     An. 


*135J  WESNER   ads.    BRISTER.  89 

*Frederick  Wesner  ads.   Guardian  of  To'si  Brister.     [*135 

Under  the  Act  of  1740,  any  negro  claiming  to  be  free,  lias  the  right,  bj  guardian, 
to  bring  an  action  of  trespass  in  the  nature  of  rainshment  of  ward;  not  only  against 
any  one  claiming  property  in,  but  against  any  one  having  the  possession  of  such 
negro. 

Ill  the  City  Court,   Charleston,  before  his  Honor  J.  Axson,  Recorder, 
April  Term,  1840. 

This  ^vas  a  case  of  ravishment  of  ward,  to  try  the  freedom  of  Tom 
Brister.  The  evidence  is  all  in  writing.  I  ruled  that  the  master  of  the 
workhouse  was  liable  to  this  form  of  proceeding.  The  jury  established 
the  freedom  of  Tom,  and  the  City  Attorney  served  me  with  the  annexed 
grounds  of  appeal. 

The  written  testimony  presented  the  following  case  : 

Tom  Brister  was  a  free  person  of  color,  resident  in  Florida,  who  executed  au 
instrument  of  writing  to  Mr.  John  Yeomans,  of  which  the  following  is  a  copy  : . 

Territorij  of  Florida,  Duval  Countjj : 

Know  all  men  by  these  presents,  that  I,  Thomas  Brister,  colored  man,  for  and 
in  consideration  of  Mr.  John  Yeomans  having  paid  certain  sums  of  money  for  me, 
viz.:  $200  to  Mr.  James  Stevens:  $30  to  Mr.  William  Colson,  and  divers  other 
sums  for  diflerent  purposes,  all  for  my  interest,  hai^piness  and  welfare,  I  do  hereby 
bind  myself  to  serve  Mr.  Yeomans  as  a  laborer  for  the  term  of  five  years  from  the 
date  of  these  presents  ;  and  do  hereby  further  promise  that  if  he,  said  John  Yeo- 
mans, bargains  or  sells  my  said  time  for  five  yeai-s,  to  any  other  person  or  persons, 
then  I  will  well  and  truly  serve  them  as  a  laborer,  to  the  best  of  my  abilities,  until 
said  time  is  out. 

Given  under  my  hand  and  seal,  in  the  town  of  Jacksonville,  this  11th  day  of 
August,  A.  D.  ISoS). 

THOMAS   i<    BRISTER.     [l.  s.] 
mark. 
Signed,  sealed  and  delivered  in  the  presence  of 
Stephex  D.  Fekxaxdez, 

CUESTEK  BiSBEE. 

*Mr.   Yeomans  sent  Tom  Brister  to  Mr.  Thomas  X.  Gadsden,  [-:(;io/. 
the  broker,  for  sale,  when  Mr.   Gadsdeii  committed  him  to  the  ^ 
workhouse  for  safe  keeping.     From  statements  made  by  Tom  Brister,  of 
his  freedom  the  present  action  was  commenced. 

GROU.NDS    OP    APPEAL. 

1.  That  the  master  of  the  work  house  is  not  liable  to  an  action  to  try  the 
freedom,  or  for  the  delivery,  of  a  negro  lodged  there,  by  any  other  person  than 
the  parties  who  lodged  hhn  in  the  work  house. 

2.  'J'hat  the  negro  had  been  properly  received  and  detained  by  the  master  of 
the  workhouse,  under  the  circumstances  in  testimony  by  the  defendant. 

3.  That  the  defendant  is  not  liable  to  the  costs — he  is  a  public  officer  under 
a  State  Law. 

3fr.  Eckhard,  City  Attorney,  for  the  motion. 

Is  the  master  of  the  workhouse  liable  to  any  person  lodging  a  slave  in  the  work- 
house, but  the  person  lodging  him  ? 

Mr.  E.  cited  P.  L.  (by  Grimke,)  169,  195  and  332,  and  contended  that  the 
workhouse  was  a  public  institution,  and  established  by  authority.  That  it  was 
analogous  to  the  pounds  in  England.  Cited  2  Cowp.  478  ;  and  said  trespass  would 
not  lie  against  a  pound  keeper.     lie  then  cited  City  Laws,  head   Workhouse.     It 


90  CHARLESTON,  FEBRUARY,  1841.      VOL.  I.  [*136 

was  further  argiie.l  bv  Mr.  E.  that  the  defendant  was  authorized  to  detain  Tom 
Brister,  under  "the  circumstances.  He  also  said  tliat  it  was  competent  for  a  free 
person 'of  color  to  make  a  contract,  depriving  himself  of  his  freedom  for  a  term  of 
years  ;  and  the  person  so  owning  him  for  the  time  being,  had  a  right  to  sell  him 
in  South  Carolina,  as  much  so  as  in  Florida. 

Mr.  J.  B.  Thompson,  contra  offered  no  argument,  but  submitted  the  case  to  the 
judgment  of  the  Court,  under  all  the  circumstances  attending  it. 

Curia,  pe7'  Butler,  J.  In  connection  with  the  facts  stated  in  the 
report  of  the  Recorder,  the  following  facts  were  stated  and  admitted  on 
the  hearing  of  this  cause  :  That  John  Yeoraans,  residing  in  Florida, 
^,  „wn  assuming  to  be  the  absolute  owner  *of  Brister,  sent  him  to  Thomas 
•J  N.  Gadsden,  a  broker,  to  be  sold  as  a  slave.  Under  the  impres- 
sion that  Brister  was  a  slave,  Gadsden  committed  him  to  the  workhouse 
of  Charleston,  of  which  defendant  was  keeper,  for  safe  keeping  until  he 
could  eifect  a  sale.  Yeomans' instructions  were  that  Gadsden  should  sell 
Brister  to  some  one  who  would  carry  him  to  New  Orleans,  stating  that 
Brister  would  endeavor  to  make  such  statements  as  to  procure  his  dis- 
charge, but  that  Gadsden  must  not  believe  him,  &c.  After  Brister  was 
committed,  he  made  such  communications  as  to  induce  the  keeper  of  the 
workhouse  to  write  to  one  Archibald  Clark,  residing  in  Georgia,  to  know 
if  Brister  was  a  free  man,  as  stated  by  himself.  Clark  returned  an  answer, 
saying  that  he  was,  and  that  he  (Clark)  was  his  guardian  ;  and  also  sent 
an  affidavit  of  the  same  purport ;  upon  which,  the  attorney  of  plaintiff 
made  a  demand  that  Brister  should  be  released.  In  the  mean  time,  Gads- 
den wrote  to  Yeomans  of  what  had  passed.  Yeomans  then  sent  the  con- 
tract, noticed  by  the  Recorder,  showing  the  true  relation  between  himself 
and  Brister,  to  wit :  a  personal  obligation  for  the  services  of  Brister  for  a 
limited  term.  From  this,  Gadsden  became  satisfied  that  Brister  vras  not 
liable  to  be  sold  as  a  slave,  and  called  and  paid  the  fees  of  the  work- 
house, and  at  the  same  time  discontinued  any  further  agency  or  control 
over  Brister.  Under  this  state  of  facts,  the  plaintiff  was  put  to  his  action 
of  ravishment  of  ward,  allowed  by  the  Act  of  Assembly  of  ll40,(a)  by 
which  it  is  provided  that  the  Court,  &c.,  may  appoint  a  guardian  for  any 
person  of  color  claiming  to  be  free,  and  that  such  guardian  may  bring  an 
action  in  the  nature  of  ravishment  of  ward  against  any  person  who  shall 
claim  property  in,  or  who  shall  be  in  the  possession  of,  any  such  negro, 
Ac;  and  it  is  further  provided,  that  such  defendant  shall  and  may  plead 
the  general  issue  on  such  action  brought,  and  the  special  matter  may  and 
shall  lie  given  in  evidence,  &c.  Such  was  the  state  of  pleadings  in  this 
case,  the  true  issue  of  which  was  to  try  Brister's  right  to  freedom.  From 
the  evidence  on  the  trial,  it  was  unquestionable  that  his  liberty  had  been 
put  in  jeopardy,  and  that  he  was  entitled  to  be  discharged  from  custody, 
as  a  fn-e  man  of  color.  Gadsden  committed  and  Wesner  received  the 
plftiiitill  into  custody,  witliout  any  wilful  participation  in  the  infamous 
fraud  attempted  to  l)e  committed  by  Yeomans;  and  perhaps  it  would  not 
♦1381  ^^^  ""'"''^  ^*^*  ''"'*^  ^''^  '"■^^^'^  *liable  for  damages,  as  for  a  trespass  in 
the  wrongful  taking  and  imprisonment  of  the  plaintiff.  In  general, 
I  should  Ihiidv  that  he  ought  not  to  l)e  held  liable  to  any  action  by  a  third 
person  for  negroes  committed  to  his  custody,  until  after  demand  made 

('0  7  Stat.  3tJ7,  g  1.     An. 


*13S]  BANK   VS.    KERR.  91 

and  a  wrongful  detention  and  conversion  on  his  part  ajrainst  tlic  rights  of 
the  true  owner;  as  by  the  City  laws,  sec.  5th,  page  856,  it  is  made  the 
duty  of  the  keeper  of  the  workhouse  to  adiuit  and  conhne  all  slaves 
delivered  into  his  charge  or  custody  by  the  order  or  in  l)eha]f  of  their 
respective  owners,  or  committed  by  the  intendant,  &c.  The  defendant 
was  therefore  justified  in  receiving  Brister  into  his  custody,  from  his 
ostensible  owner.  But  this  justification  ceased  after  Gadsden  paid  the 
fees  and  discontinued  his  control  over  Brister.  Trom  that  time  the 
defendant  held  him  on  his  own  responsibility,  or  by  the  direction  of  the 
commissioners  of  the  workhouse,  and  had  no  further  right  to  claim 
exemption  from  liability  to  this  action.  Indeed,  without  the  defendant 
had  been  liable,  the  plaintiff  would  have  been  without  remedy,  so  far  as 
his  actual  imprisonment  was  concerned.  A  suit  against  Gadsden,  if  any 
action  would  have  lain  against  him,  after  he  had  discontinued  his  agency 
in  the  matter,  would  have  afforded  no  relief;  and  Yeomans  was  beyond 
the  jurisdiction  or  reach  of  legal  process.  The  necessity  of  his  situation 
gave  him  a  remedy  afforded  by  this  action.  The  Act,  however,  under 
which  this  action  is  brought,  is  explicit  and  peremptory  in  its  provisions, 
that  any  negro  claiming  to  be  free,  has  a  right,  by  guardian,  to  bring  an 
action  of  trespass,  in  the  nature  of  ravishment  of  ward,  against  not  only 
any  one  claiming  property  in,  but  against  any  one  having  the  possession 
of,  such  negro.  The  defendant,  who  had  the  actual  possession  of  the 
man  claiming  his  freedom,  was  therefore  liable  to  this  action,  and  can 
take  nothing  by  his  motion.  Motion  dismissed. 
The  whole  Court  concurred. 

See  Huger  vs.  Barnwell,  5  Rich.  275.     An, 


*The  State  Bank  vs.  John  Cessford  Kerr.  [*139 

The  Same  vs.  Stoddard,  Miller  &  Co. 

The  protest  of  a  note  for  non-payment,  and  legal  notice  to  the  endorser,  binds  the 
endorser  for  the  payment  of  the  debt. 

"  The  siirety  is  bound  by  the  terms  of  his  contract,  and  if  the  creditor,  by  agree- 
*'  merit  with  the  principal  debtor,  without  the  concurrence  of  the  svirety,  varies 
"these  terms,  by  enlarging  the  time  of  performance,  the  surety  is  discharged; 
"for  he  is  injured  and  his  risk  increased," 

Wliere  a  new  contract  had  been  made  by  the  defendant,  Kerr,  with  the  bank, 
(which  he  never  complied  with, )  by  which  he  was  to  have  five  years,  by  sub- 
stituting new  notes  with  the  same  endorsers,  in  lieu  of  the  suit ;  it  was  held  not 
to  be  such  a  variance  as  to  discharge  the  endorsers. 

Before  Richardson,  J.,  at  Charleston,  January  Term,  1841. 

This  was  an  action  by  the  State  Bank,  as  the  holder  of  a  promissory 
note  drawn  by  defendant,  in  favor  of  11.  Stoddard,  ISIiller  &  Co.  The 
note  was  for  the  sum  of  $750,  and  dated  18th  March,  1840,  payable 
eighteen  days  after  date.  The  handwriting  of  the  parties  was  admitted. 
The  defence  relied  upon  was  a  certain  deed  which  was  introduced  in  evi- 
dence by  the  defendant,  dated  the  22d  day  of  June,  1840,  and  executed 
between  the  defendant,  on  the  one  part,  and  James  Rose,  President  of 


92  CHARLESTON,  FEBRUARY,  1841.      VOL.  I.  [*139 

the  South  Western  Railroad  Bank  The  deed  recited  that  the  defendant, 
by  reason  of  misfortune,  was  unable  to  pay  and  satisfy  to  his  creditors  the 
sums  of  raonev  to  them  respectively  due  and  owino: ;  that  he  was  desirous 
of  securini?  and  satisfying  his  creditors,  and  for  that  purpose  transferred 
to  the  said  James  Rose  all  his  property,  as  the  same  is  therein  described 
and  set  forth,  subject  to  certain  conditions  thereinafter  expressed  of  and 
concerning  the  same  :  that  "  in  consideration  of  the  premises,  the  said 
James  Rose  had  agreed  to  certain  conditions,  covenants  and  agreements, 
as  well  on  the  i)art  of  the  said  party  of  the  second  part,  as  on  the  part 
of  all  others  who  are  creditors  of  the  said  John  Cessford  Kerr,  to  be 
oljserved,  kept  and  performed,  which  said  covenants  and  agreements  are 
bereinai'ter  more  particularly  set  forth  and  expressed,  and  for  the  faithful 
preserving,  jicrforming  and  keeping  of  which  the  said  party  of  the  second 
jiart,  and  all  other  person  or  ])ersons,  party  or  parties,  as  named  in  the 
schedule,  creditors  of  the  said  John  Cessford  Kerr,  are  and  shall  be,  pre- 
*iiri1  ^''0"sly  '^o  the  full  eifect  and  efficacy  of  these  presents*  respec- 
-l  tively,  unto  the  said  John  Cessford  Kerr,  by  these  presents  firmly 
held  and  bound." 

In  the  argument  of  the  case  before  me,  great  stress  was  laid  upon  the 
precise  words  of  the  deed.  I  have,  therefore,  given  the  above  extract 
from  the  deed,  and  will  do  so  in  the  other  part  of  the  same  instrument,  to 
which  I  shall  have  occasion  to  allude.  After  conveying  a  considerable 
amount  of  property,  the  following  trusts,  upon  which  the  questions  in 
this  case  are  made,  are  declared  and  expressed.  "  In  trust  to  pay,  dis- 
charge and  satisfy,  in  equal  portions  and  rateably,  the  sura  and  sums  of 
money  respectively  due  and  owiug  to  the  several  parties  who  are,  or  may 
become,  parties  to  these  presents,  according  to  the  terms  of  i^ayment 
hereinafter  expressed  and  agreed  upon."  "  And  it  is  also  well  under- 
stood, covenanted  and  agreed  upon,  by  and  between  the  said  John  Cess- 
ford Kerr  and  the  said  party  of  the  second  part,  and  also  all  other  party 
or  ])arties  to  these  presents,  that  no  part  or  portion  of  the  property 
hereinafter  conveyed,  shall  be  sold,  conve3'ed  or  disposed  of  before  the 
expiration  of  five  years,  commencing  from  the  date  of  these  presents, 
unless  with  the  consent  of  the  said  John  Cessford  Kerr,  thereto  by  hira 
given  and  suljscribed  in  writing." 

In  another  part  of  the  deed  this  clause  appeared  immediately  after  the 
habendum  in  the  deed.  "Subject  to,  nevertheless,  the  following  trusts, 
conditions,  covenants  and  agreements,  of  and  concerning  the  same,  &c., 
that  is  to  say,  that  the  said  John  Cessford  Kerr  shall  be  allowed  by  the 
said  party  of  the  second  part,  and  by  all  other  person  or  persons,  party 
or  parties,  creditors  of  the  said  John  Cessford  Kerr,  set  forth  in  the  said 
schedule,  to  substitute  for  the  promissory  notes  of  the  said  John  Cessford 
Kerr,  now  by  them  held  resi)ectively,  or  for  which  they,  or  any  of  them, 
may  be  responsible,  other  new  notes  of  the  said  John  Cessford  Kerr,  and 
endorsed  in  the  same  manner  as  the  original  notes  for  which  they  have 
been  substituted  :  and  that  the  said  new  notes  shall  be  made  i^ayable  in 
five  e(|uul  annual  instalments,  commencing  from  the  day  of  the  date  of 
these  presents." 

On  tiie  part  of  the  defeiulnnt  it  was  contended,  that  by  the  terms  of  the 
deed,  the  dt-fondant  was  entitled  to  a  new  credit  of  five  years;  that  this 
was  an  agreement  upon  good  consideration,  as  the  defendant  had  traus- 


*140]  STATE   BANK    VS.    STODDARD,    ET   AL.  93 

ferred  liis  pro])erty  upon  cortnin*  conditions,  of  which  this  wns  r^r.-iji 
one;  and  that  the  plaintill's  had  therefore  no  right  of  action  ^ 
against  liiin.  That  the  agreement  to  substitute  new  notes,  was  a  privi- 
lege given  to  Kerr,  which  he  could  exercise  or  not ;  that  it  was  not  a 
condition.  For  the  phiintitfs  it  was  urged  tliat  this  was  a  condition,  a 
part  of  the  contract  on  the  part  of  Kerr,  that  he  was  to  give  the  new 
notes,  and  in  relation  to  all  claims  against  him  where  such  new  notes 
were  not  given,  he  had  failed  in  the  performance  of  a  covenant  on  his 
part.  I  considered  the  ])osition  last  stated  as  correct,  and  so  charged 
the  jury;  a  verdict  was  taken  for  the  amount  of  the  note  with  interest, 
and  the  defendant  appealed,  on  the  annexed  grounds  : 

1.  Because,  by  the  deed  offerecl  in  evidence  by  the  defendant,  a  new  credit 
was  given  to  the  defendant  for  valuable  consideration  by  the  same,  the  plaintilF 
was  estopped  from  proceeding  at  law,  until  default  made  in  the  new  credit. 

2.  'I'hat  so  much  of  the  deed  as  relates  to  the  substitution  of  new  notes  for 
the  old  notes  hold  by  the  State  Bank,  was  nothing  more  than  a  privilege  given 
to  the  defendant,  and  it  was  left  to  him  to  use  it  or  not,  as  he  pleased. 

3.  That  by  the  said  deed,  the  parties  to  the  same  were  bound  not  to  proceed 
to  sell  any  portion  of  the  said  property,  and  consequently  they  will  be  estopped 
from  proceeding  at  law,  or  otherwise  where  the  result  of  a  verdict  for  the 
plaintuT  would  give  the  fullest  power  to  exercise  the  right,  which  was  renounced 
for  five  years. 

4.  That  the  verdict  was  in  other  respects  against  the  law  and  evidence. 


The  State  Bank  vs.  Stoddard,  Miller  &  Co. 

This  was  an  action  brought  by  the  State  Bank  against  H.  Stoddard, 
Miller  &  Co.  as  the  endorsers  of  a  promissory  note  made  J.  C,  Kerr,  for 
$750,  dated  the  27th  day  of  March,  1840,  and  payable  eighteen  days  after 
date.  The  note  was  not  paid  at  maturity  by  tlie  drawer,  and  was  duly 
protested  *for  non-payment.  The  handwriting  of  the  parties  was  r^-ii.7 
admitted,  and  the  defence  was  that  the  conduct  of  the  plaintiff  had  L 
discharged  the  endorsers.  John  C.  Kerr,  the  drawer  of  this  note,  having 
become  unal)le  to  pay  his  creditors  the  amount  due  to  them,  executed  to 
James  Rose,  President  of  the  South  Western  Railroad  Baid<,  a  convey- 
ance of  his  property  mentioned  in  the  said  deed,  upon  certain  conditions 
and  for  certain  purposes  expressed  in  the  said  deed.  Such  portions  of 
the  said  deed  as  were  particularly  commented  on,  and  furnished  a  clear 
understanding  of  the  positions  contended  for,  I  have  extracted ;  they  are 
as  follows  :  after  specifying  that  Kerr  is  unable  to  pay,  that  he  desires  to 
secure  his  creditors,  and  has  for  that  purpose  transferred  his  property  to 
the  said  James  Rose,  it  proceeds  to  declare  that  "  in, consideration  of  the 
premises,  the  said  James  Rose  hath  agreed  to  certain  conditions,  cove- 
nant and  agreement,  as  well  on  the  part  of  the  said  party  of  the  second 
part,  as  on  the  part  of  all  others  who  are  creditors  of  the  said  John  Cess- 
ford  Kerr,  to  be  observed,  kept  and  performed,  which  said  covenant  and 
agreement  are  hereinafter  more  i)articularly  set  forth  and  expressed,  and 
for  the  faithful  preserving,  ])erforming  and  keeping  of  which,  the  said 
party  of  the  second  part,  ami  all  other  ))erson  or  persons,  party  or  par- 
ties, as  are  described  in  the  schedule,  creditors  of  the  said  John  Cessford 


91  CHARLESTON,  FEBRUARY,  1841.      TOL.  I.  [*142 

Kerr,  are  and  shall  be,  previous  to  the  full  effect  and  efficacy  of  these 
presents,  respectively,  unto  the  said  John  Cessford  Kerr,  by  these  pre- 
sents, firmly  held  and  bound."  The  following  clauses  of  the  deed  were 
also  brought  to  the  view  of  the  Court.  "  Subject  to,  nevertheless,  the 
following  n-usts,  conditions,  covenants  and  agreements,  of  and  concerning 
the  same,  &c.,  that  is  to  say,  that  the  said  John  Cessford  Kerr  shall  be 
allowed  by  the  said  party  of  the  second  part,  and  by  all  other  person 
or  persons,  party  or  parties,  creditors  of  the  said  John  Cessford  Kerr, 
set  forth  in  the  said  schedule,  to  substitute  for  the  promissory  notes 
of  the  said  John  Cessford  Kerr,  now  by  them  held  respectively,  upon 
which  they  or  any  of  them  may  be  responsible,  other  new  notes  of  the 
said  John  Cessford  Kerr,  endorsed  in  the  same  manner  as  the  original 
notes  for  which  they  have  been  substituted;  and  that  the  said  new  notes 
shall  be  made  payable  in  five  equal  annual  instalments,  commencing  from 
the  day  of  the  date  of  these  presents."  And  the  following  trust  is  also 
^.  ,0-1  extracted  from  the  *deed.  "In  trust  to  pay,  discharge  and  satisfy, 
-J  in  equal  portions  and  rateably,  the  sum  and  sums  of  money  respec- 
tively due  and  owing  to  the  several  parties  who  are  or  may  become  par- 
ties to  these  presents,  according  to  the  time  of  payment  hereinbefore 
expressed  and  agreed  upon.  And  it  is  also  well  understood,  covenanted 
and  agreed  upon  by  and  between  the  said  John  Cessford  Kerr  and  the 
said  party  of  the  second  part,  and  also  all  other  party  or  parties  to  these 
presents,  that  no  part  or  portion  of  the  property  hereinbefore  conveyed, 
shall  be  sold,  conveyed  or  disposed  of  before  the  expiration  of  five  years, 
commencing  from  the  date  of  these  presents,  unless  with  the  consent  of 
the  said  John  Cessford  Kerr,  thereto  by  him  given  and  subscribed  in 
writing."     The  State  Bank  became  a  party  to  this  deed. 

For  the  defendant,  it  was  contended,  that  the  State  Bank  being  a  party 
to  the  deed,  consenting  to  and  bound  by  all  the  covenants  and  conditions 
of  the  deed,  without  the  consent  of  the  endorsers  had  discharged  them 
from  their  liability;  that  here  was  not  only  indulgence  given  to  the 
drawer,  Ijy  agreeing  that  his  i)roperty  should  be  kept  secure  from  sale 
for  five  years,  but  that  the  bank  had  moreover  set  apart  a  certain  portion 
of  the  i»roperty  of  the  drawer  for  certain  purposes ;  that  here  there  was  a 
new  contract,  new  security  taken,  which,  as  it  prejudiced  the  remedies  of 
the  endorsers,  discharged  them  from  all  their  liability.  It  was  contended  on 
the  other  side,  that  there  was  no  indulgence,  and  that  the  endorsers  were 
not  prejudiced  by  the  conditions  of  the  deed.  I  was  decidedly  of  ojunion, 
that  indulgence  by  the  deed  was  given  to  the  drawer ;  that  the  bank  had, 
by  its  l)econiiiig  a  party  to  the  deed,  agreed  that  Kerr  might  pay  the 
debt  in  five  ecpial  annual  instalments;  that  for  five  years  itVas  agreed 
liis  ].roperiy  siiould  be  protected  :  that  this  protection  of  the  property 
was  a  prejudice  to  the  endorsers,  without  their  consent,  and  of  course 
discharg.-d  them.  I  told  the  jury  that  if  the  holder  entered  into  a  new 
confraci  with  the  drawer,  gave  him  indulgence,  or  so  acted  as  to  impair 
tlie  right  of  llie  endorser  against  the  drawer,  that  such  acts  were  at  the 
risk  of  the  holler,  and  would  discharge  the  endorser;  and  that  in  this 
case  there  was  no  doubt  that  the  conduct  of  the  holders  of  the  note  had 
in  law  dis<-hargcd  the  endorsers.  The  jury,  however,  found  a  verdict 
♦  J44]  *''"■  *''"'  I'lii'iitilf,  for  the  whole  amount  of  the  note  with  interest, 
and  the  defendant  appeals,  on  the  annexed  grounds  : 


*144]  STATE    BANK    VS.    STODDARD,    ET    AL.  95 

1st.  Because  the  deed  produced  on  the  part  of  the  defendant,  clearly  estab- 
lished an  indulgence,  in  giving  time  to  the  drawer,  without  the  consent  of  the 
endorsers  ;  which  was  sufficient  to  discharge  the  endorsers. 

2d.  That  the  said  deed  established  that  the  plaintiffs,  without  the  consent  of 
defendants,  who  were  endorsers,  became  parties  to  the  same,  and  by  the  terms 
of  the  said  deed,  agreed  that  the  property  of  the  drawer  should  be  protected 
from  all  sale  for  five  years,  unless  with  the  consent  of  the  drawer. 

3d.  That  the  case  made  was  one  where  indulgence,  in  an  extension  of  the 
time  of  payment,  by  preserving  the  property  of  the  defendant  from  sale  for  five 
years,  was  given  to  the  drawer,  without  the  consent  of  the  endorser,  and  this  is 
sufficient  to  discharge  the  endorser. 

4th.  That  the  case  was  one  where  the  holder  takes  new  security  to  the  pre- 
judice of  the  endorser,  which  discharges  him  from  his  responsibility. 

5th.  That  the  jury  were  charged  most  distinctly  by  his  Honor,  the  presiding 
Judge,  that  the  defendants  were  discharged,  and  this  charge  of  his  Honor  on  a 
point  of  law,  was  binding  on  the  jury,  and  should  have  been  observed. 

6th.  That  the  verdict  was  clearly  contrary  to  all  the  evidence  and  the  law 
of  the  case. 

Marjrath,  for  the  motion,  said,  that  where  time  was  given,  on  indulgence,  it 
would  discharge  the  endorsers.  Cited  1  Bay,  46(J  ;  1  Mills'  Cons.  Rep.  371 ;  1  N. 
&  McC.  117  ;  6  Peters,  257. 

H.  A.  DeSaussitre,  contra,  contended  that  no  time  or  indulgence  had  been  given  ; 
that  the  very  day  the  eighteen  days  expired,  the  defendant  refused  or  failed  to 
pay,  the  bank  instantly  brought  suit.  He  also  contended  that  the  deed  was  but 
a  limited  one,  and  not  general,  as  to  all  Kerr's  creditors,  assigning  only  a  certain 
specific  portion  of  his  property,  leaving  the  balance  unincumbered  and  liable  for 
his  debts.  He  further  said  that  the  conditions  of  the  deed  were  not  complied  with 
by  Kerr ;  and  that  the  defence  was  founded  upon  a  misconstruction  *of  the  c^-iak 
deed.  It  was  a  condition  precedent.  Cited  1  H.  Black.  Rep.  270  ;  1  Bacon,  '- 
261 ;  3  Comyn's  Dig.  90  and  91,  note  F  ;  Chitty  on  Bills,  292. 

Magrath,  in  reply,  contended  that  the  intention  of  the  bank  was  not  to  be  con- 
sidered, but  the  acts  of  the  bank.  The  releasing  of  Kerr  by  the  bank,  whether 
they  intended  to  release  the  endorsers  or  not,  operated  as  a  release  to  them. 

Curia,  per  O'jS'eall,  J.  After  a  note  has  been  protested  for  non- 
payment, and  notice  legally  given  to  the  endorser,  he  becomes,  like  any- 
other  unconditional  security,  bound  for  the  payment  of  the  debt.  A 
mere  giving  day  to  the  principal,  or  forbearing  to  enforce  the  collection 
of  the  debt,  would  not  generally  discharge  the  security,  Picket  vs.  Land, 
(2  Bail.  608.)  In  Weyman  vs.  Kirbij,  2  Bail.  551,  553,)  (a)  the  rule 
extracted  from  King  vs.  Baldwin,  (2  ,J.  C.  R.  559,  560,)  "that  the 
surety  is  bound  by  the  terms  of  his  contract,  and  if  the  creditor  by 
agreement  with  the  principal  debtor,  without  the  concurrence  of  the 
surety,  varies  these  terms,  by  enlarging  the  time  of  performance,  the 
surety  is  discharged,  for  he  is  injured  and  his  risk  increased,"  met 
the  approbation  of  the  Appeal  Court.  This  rule  must  decide  these 
cases  ;  for  if  the  Bank  has  varied  the  terms  of  Kerr's  contract,  by 
enlarging  the  time  of  performance,  then  Stoddard,  Miller  &  Co.,  the 
endorsers  fixed  by  notice  are  discharged.  We  shall  be  at  once  able  to 
decide  the  cases  by  enquiring,  had  the  Bank,  by  the  contract  in  proof,  so 
varied  the  terms  of  Kerr's  note,  and  so  enlarged  the  time  of  payment, 
that  he  could  not  be  sued  ?  if  so,  he,  as  well  as  Stoddard,  Miller  &  Co., 

(a)  Slip.  84.     An. 


96  CHARLESTON,  FEBRUARY,  1841.      VOL.  I.  [*145 

is  protected,  but  if  not,  then  all  are  liable.  The  provision  in  the  deed 
to  ffive  to  Kerr  the  opportunity  of  paying  this  debt,  as  well  as  his  other 
deirts  to  the  State  Banl^,  in  five  equal,  annual  instalments,  depended 
upon  his  substituting  for  the  note  now  in  suit,  another  note  with  the  same 
endorsers;  this  was  not  done,  and  of  course  there  is  notliing  in  this  pro- 
vision of  tlie  deed  which  varies  the  terms  of  the  defendant's  note.  The 
only  provision  which  looks  like  an  enlargement  of  the  time  of  per- 
formance is  that  which  declares  that  no  part  of  the  property  conveyed 
shall  be  sokl  in  five  years  But  that  does  not  vary  the  terms  of  Kerr's 
note.  He  was  still  liable  to  pay  it  presently.  He  might  be  sued  upon 
it  at  any  moment.  This  being  so,  the  endorsers,  Stoddard,  Miller  &  Co., 
^,  „-,  cannot  complain.  '^'For  every  thing  remains  as  before,  so  far 
-I  as  their  contract  is  concerned.  Under  the  judgment  recovered  in 
this  case,  any  property  which  Kerr  may  possess,  and  which  is  not  under 
some  legal  incumbrance,  may  be  sold  in  satisfaction.  The  deed  before 
us,  which  exempts  his  property  from  sale  for  five  years,  is  nothing  more 
than  giving  a  jireference  to  such  creditors  as  come  in  and  give  their 
assent  to  it  within  the  time  limited.  That  opportunity  was  offered  to 
these  defendants,  and  that  they  did  not  avail  themselves  of  it,  is  perhaps 
more  their  misfortune  than  their  fault.  Still  they  cannot  complain  of  the 
Bank  for  holding  them  liable  presently,  when  their  own  neglect  com- 
pelled the  present  course.  It  may  be,  that  if  their  failure  to  sign  the 
deed  was  accidental,  that  they  may,  in  another  Court,  be  still  allowed  to 
come  in  and  have  the  benefit  of  its  provisions.  On  looking  through  the 
deed,  I  think  all  its  provisions  are  greatly  for  the  benefit  of  Kerr's 
endorsers,  and  that  the  delay  of  sale  for  five  years  of  the  property  con- 
tained in  the  deed,  may  be  the  means  of  paying  his  debts,  without 
resorting  to  them.  If  so,  this  provision  would  not  increase  the  risk  of, 
and  would  be  no  injury  to,  the  endorsers,  and  in  that  point  of  view  would 
not  come  within  the  rule  for  their  discharge. 
The  motion  is  dismissed. 

Evans,  Earle,  and  Butler,  JJ.,  concurred. 


*\i1'}        *SnERMAN  and  Debruiil  rs.  JuDAn  Barrett. (a) 

An  njiplicant  for  liis  discliarge  under  the  Insolvent  Debtors'  Act,  will  not  be 
iHTifiitti'd  to  rliscoiitinu(!  or  withdraw  his  application  after  a  suggestion  charging 
IiIm  Mrli.Ml\il(,  with  fraud  has  been  filed,  (h) 

A  d.-frtKlaiifs  Hclicdul(!  is  amenable,  under  the  discretion  of  the  Conrt ;  Init  it 
iiiu.st  b.-  Mhowu  by  affidavit,  or  otliorwis.",  to  the  satisfaction  of  the  Court,  that 
tlif  omission  to  insert  the  property  omit,t(Ml  in  the  schedule,  arose  from  ignorance, 
inadvertence,  or  mistake.  Ho  will  not  bo  permitted  to  amend,  if  it  will  create 
HurjiriHe  or  delay  to  the  r)ther  party. 

Wlieri('v<T  the  ri;,'bt  of  a  ]ierson  to  bo  discharged  is  resisted,  on  the  ground  of 
fraud,  it  is  not  necessary  tliat  there  should  be  any  showing  on  oath,  unless  the 
result  of  the  allegation  would  bo  to  delay  the  hearing  of  the  debtor's  application. 

(a)  S.  C.  again  and  again  ;  2  Sp.,  520  ;  1  Rich,  457  ;   2  Strob.,  .'55:3.     An. 
(fc)  ace  ^V.  CWic;r»  case,  11  Rich.  ;   iilceiier  i^-  Fenner,  N.  A.   Cohen.     An. 


147] 


SHERMAN    &   DEBRUHL    I'f.    BARRETT.  97 


In  that  event,  the  Court,  in  the  exercise  of  a  sound  discretion,  may  require  the 
ci'editor  to  verify  his  accusation  by  affidavits,  (a) 

Tlie  limitation  of  time,  in  the  seventli  section  of  the  Prison  Bounds'  Act,  (P.  L. 
457, )  (6)  applies  solely  to  undue  preference ;  and  a  fraudulent  sale  or  convey- 
ance, and  a  fraudulent  preference,  are  two  distinct  things. 

A  witness  attending  under  a  subpoena  duces  tecum,  is  not  required  to  testify,  but 
merely  to  bring  into  Court  a  paper  which  the  party  needs. 

A  deed  to  a  concubine  to  procure  future  cohabitation  is  void ;  also,  a  deed  for 
services  rendered  by  a  kept  mistress  is  void,  if  the  grantor  be  in  debt  at  the  time 
of  the  conveyance,  or  continues  to  retain  possession  of  the  property  from  the 
date  of  the  deed  until  he  becomes  insolvent. 

Where  a  debtor  had  conveyed  to  his  son-in-law  a  number  of  houses  and  lots  in 
the  town  of  Columbia,  and  a  number  of  slaves,  for  which  he  is  said  to  have 
received  a  large  sum  of  money,  and  at  the  date  of  the  conveyance  was  very 
much  in  debt ;  on  the  trial  of  the  validity  of  his  schedule,  it  was  held  that  the 
071US  lay  on  the  defendant,  to  account  for  the  proceeds  of  the  sale  of  this  property. 

When  a  debtor  alleges  that  the  proceeds  of  a  sale  of  property  made  by  him,  has 
been  gambled  away,  the  question  of  his  gaming  may  be  submitted  to  the  jury, 
and  their  finding  will  not  be  disturbed. 

Before  O'Neall,  J.,  at  Charleston,  January  Term,  1840. 

The  defendant  was  an  applicant  for  the  benefit  of  the  Insolvent 
Debtors'  Act.  During  the  first  part  of  the  term,  held  by  my  brother 
Evans,  the  plaintiffs,  two  of  his  creditors,  appeared  and  objected  to  his 
discharge,  and  filed  their  suggestion,  charging  the  defendant's  schedule 
to  be  fraudulent  in  many  particulars.  Monday  of  the  last  week  of  the 
term  was  fixed  at  that  time  for  the  trial  of  the  cause.  It  was,  to  accommo- 
date the  bar,  allowed  to  stand  over  until  Friday.  When  the  trial  was 
about  to  proceed,  Mr.  Yeadon,  for  the  defendant,  moved  *for  r^iiq 
leave  to  withdraw  his  applications  for  a  discharge,  and  brought  '- 
to  my  view  that  no  formal  issue  had  been  made  up.  The  plaintiffs 
insisted  on  their  right  to  try  the  issue.  I  thought  according  to  the  case 
of  Walker  vs.  Brv/gs,  (I  Hill,  '291,)  he  could  not  be  permitted  now  to 
withdraw  his  application.  A  motion  was  made  to  continue  the  case,  on. 
the  ground  that  the  defendant  had  not  had  suflScient  time  to  answer  the 
facts  set  out  in  the  third  allegation  of  fraud  on  the  part  of  the  plaintiffs. 
No  aflSdavit  was  submitted,  and  the  defendant  did  not  show  himself  in 
the  court  house.  The  motion  was  overruled.  The  defendant's  counsel 
made  repeated  motions  to  amend  his  schedule,  by  inserting  therein  all 
his  interest  in  the  western  lands,  the  house  and  lot  and  negroes  and 
other  personal  property  conveyed  to  Eliza  Smith,  alias  Barrett,  and  the 
houses  and  lots  and  slaves  conveyed  to  Jacob  Cohen  ;  these  motions 
were  made  before  the  case  was  gone  into,  and  were  repeated  at  various 
stages  of  the  case.  But  I  never  thought  it  was  shown  that  the  omission 
to  insert  the  same  in  the  schedule  arose  from  either  ignorance,  inad- 
vertence or  mistake.  Throughout  the  case,  no  such  affidavit  of  the 
defendant  was  presented.  Indeed,  he  was  not  present  to  amend  his 
*schedule,  if  any  order  had  been  made.  The  defendant's  defence  r^^i^q 
seemed  to  be  that  his  schedule  was  true,  and  that  he  had  no  interest  L 
in  the  property  alluded  to  ;  and  if  there  was  any  surprise  in  the  matter  on 
his  part,  it  was  that  the  plaintiffs  were  prepared  to  prove  that  he  had 
an  interest,  and  he  was  not  prepared  to  rebut  their  testimony  ;  and  to 

(a)  Sup.  66.     II  Rich.  360.  (6)  5  Stat.  79.     An. 

YoL,  1—8 


98  CHARLESTOX,  FEBRUARY,  1841.      VOL.  I.  [*149 

get  out  of  this  difficulty,  it  was  proposed  to  amend  the  schedule.  I 
thought  thnt  I  ought  not' to  permit  the  amendment.  It  was,  at  the  very 
moment  of  trial,  making  an  entirely  new  issue,  and  would  both  surprise 
and  delay  the  plaintiffs.  Mr.  De  Saussure  stated  no  fact  that  went  to 
show  either  ignorance  or  mistake  on  the  part  of  the  defendant,  about  the 
western  lands°  He  said  that  he  called  on  Harrett  during  his  confine- 
ment and  spoke  to  him  on  the  subject ;  that  he  was  very  chary  in 
imparting  information,  but  told  him  he  would  in  a  few  days  send  him  a 
statement ;  one  in  a  few  days  was  left  at  his  office  by  Mr.  Cohen.    AVhen 

State  of  South  Carolina,  Cliarleston  District  : 

Be  it  remembered,  that  on  the  fifteenth  day  of  Janiiarv,  in  the  year  of  our  Lord 
one  thou.^and  eight  hundred  and  forty,  to  wliieh  day  the  suing  creditors  of  Judah 
Barrett,  who  is  in  custody  of  the  Sheriff  of  Charleston  District,  by  virtue  of 
sundry  writs  of  capias  ad  satisfaciendum,  at  the  suits  of  Coleman  Bedford  and 
Chri-tian  P.  Bookter,  and  all  others  to  whom  the  said  Judah  Barrett  is  in  any  wise 
indebted,  were  summoned  and  notified  to  be  and  appear  before  the  .Judges  of  the 
Court  of  Common  Pleas,  at  the  Court  to  be  holden  at  Charleston,  in  the  District 
and  State  aforesaid,  to  show  cause,  if  any  they  can,  why  the  said  Judah  Barrett 
should  not  be  admitted  to  the  benefit  of  the.  Acts  of  the  General  Assembly  made 
for  the  relief  of  insolvent  debtors,  according  to  the  prayer  of  his  petition  in  that 
belialf.  come  here  into  Court  S.  C.  Debruhl,  a  judgment  creditor  of  the  said  Judah 
Barrett,  and  L.  Sherman,  a  creditor  of  the  said  Judah  Barrett,  by  De  Saussure, 
their  attorney,  and  give  the  Court  here  to  understand  and  be  informed  that  the 
said  Judah  Barrett  ought  not  to  have  the  prayer  of  his  petition  granted,  and  ought 
not  to  be  admitted  to  the  benefit  of  the  said  Acts,  for  divere  causes  and  considera- 
tions hereinafter  set  forth  and  specified,  that  is  to  say  : 

First — Because  the  said  defendant,  Judah  Barrett,  has  within  three  months 
before  his  confinement  paid  some  one  or  more  of  the  creditors  of  him  the  said 
Judah  Barrett,  the  debts  due  liy  him  to  them,  or  one  of  them,  in  preference  to  the 
debts  of  these  relatoi-s,  and  such  preference  of  one  creditor,  per  se,  deprived  the 
said  Judah  Barrett  of  the  right  of  taking  the  benefit  of  the  said  Acts,  according  to 
tlie  statutes  in  such  case  made  and  provided. 

Second — Because  the  said  Judah  l^arrett  has  not  inserted  in  his  schedule,  nor 
accounted  for,  a  certain  large  sum  of  money,  to  wit :  the  sum  of  sixteen  thoiisand 
five  hundred  dollars,  paid,  or  seemed  to  be  paid  to  him ;  nor  for  certain  other  large 
sums  of  money  accruing  from  his  sales  of  certain  negro  slaves  belonging  to  him, 
and  wlii(-h  sums  he  reserved  in  his  hands,  as  stated  in  his  letter  to  certain  of  his 
cn-ditoi-s,  to  enable  him  to  enter  into  new  business  ;  nor  has  he  set  forth  in  what 
pni]..'!  ty  tlie  same  was  invested,  nor  in  any  manner  accounted  for  the  said  property. 

Tiiird — Because  the  schedule  filed  by  the  said  .ludah  Barrett,  purporting  to  be 
a  Hch.Mlule  f.f  all  the  real  and  personal  estate  of  the  said  Judah  Barrett,  does  not 
contain  a  ju>t  and  true  account  and  enumeration  thereof,  but  is  false,  fraudulent 
and  covinous,  inasmuch  as  it  does  not  contain  several  thousand  acres  of  laud  in 
the  States  of  Mississippi,  Alabama  and  Arkansas ;  numerous  lots  in  the  town  of 
ui»p<T  and  lower  Alwrdoen  ;  liouses  and  lots  in  New  Aberdeen  and  New  Alabama; 
HHiiilry  lots  bought  of  the  Columbus  Land  Company,  and  other  real  estate; 
wliirh  said  hf)uses,  lands  and  lots,  were  purchased  by,  or  on  account  of,  tlie  said 
Judah  Iturn-tt,  Hoitie  time  in  the  years  LS3(i  and  1837,  and  are  now  held  under 
titif-H  .-itb.T  in  his  own  name  or  in  tlie  name  or  names  of  some  other  person  or 
p.T^or.s,  HH  lii.-s..  r.-latr.rs  charge  and  believe,  upon  secret  trusts  not  apparent  upon 
tlie  fac4-  of  IIumIcmIs,  but  whi.-h  enure  in  fact  to  the  use  and  benefit  of  the  said 
Judali  Uarrr-tt,  or  are  covinousiy  licld  by  other  person  or  persons  under  fraudulent 
ronfcHMions  of  judgment  or  ju.igmcnts,  by  default,  to  hinder,  delay  and  defraud 
thn  »>ona  fide  creditors  of  the  said  Juflali  Harrett,  of  their  just  and  legal  rights,  or 
were  ronv(.y..f|,  frnur|ule)ifly,  for  a  mpr(>  nominal  or  very  inadequate  consideration, 
to  Home  otiier  jicrson  or  persons,  to  defraud  liis  creditors. 

Fourth— Because  that  the  said  Judah  Barrett,  some  time  in  the  year  of  our  Lord 


149] 


SHERMAN    &    DEBRUIIL    VS.    BARRETT.  99 


it  was  about  to  be  given  in  evidence,  the  defendant's  attorney  objected 
to  it,  on  the  ground  that  it  was  not  shown  to  have  come  from  the 
defendant.  It  was  excluded.  What  were  its  contents  I  do  not  know. 
Mr.  Cohen's  affidavit  can  be  produced  and  will  speak  for  itself.  Under 
the  insolvent  *debtors'  Act,  I  presume  an  oath  or  affidavit  of  the  r>|cirA 
truth  of  the  suggestions  disputing  the  debtor's  schedule,  was  ^ 
never  required.  Under  the  prison  bounds'  Act,  it  was  required  that 
there  should  be  some  showing  of  the  truth  of  the  allegation  of  fraud,  to 
oust  the  commissioners  of  special  bail  of  jurisdiction.     But  since  the 


one  thouscand  eight  hundred  and  thirty-eight,  fraudulently  conveyed  his  house 
and  lot  in  the  town  of  Columbia,  in  the  State  of  South  Carolina,  to  a  person  called 
in  the  deed  Eliza  Smith,  or  to  some  other  person  in  trust  for  her,  for  the  nominal 
consideration  of  three  thousand  dollars,  when  these  relators  believe  and  are 
informed,  and  so  charge,  that  in  fact,  the  said  Eliza  Smith  had  no  means  or  funds 
to  pay  for  the  same  ;  and  the  said  house  and  lot  are  now  held  by  her,  or  some 
other  person  in  trust  for  her,  to  the  hindrance  and  detriment  of  the  creditors  of 
the  said  Judah  Barrett. 

Fifth — Because  tliat  the  said  Judah  Barrett,  on  the  seventeenth  day  of  May,  in 
the  year  of  our  Lord  one  thousand  eight  hundred  and  thii'ty-eiglit,  fraudulently 
conveyed  certain  negro  or  mulatto  slaves  named  Ann,  Mary,  Josephine,  Collins 
and  Nicholas,  and  household  and  kitchen  furniture,  unto  Eliza  Smith,  or  to  some 
other  person  in  trust  for  her  use  and  benefit,  without  valuable  consideration, 
wherel>y  the  creditors  of  the  said  Judah  Barrett  are  defeated  and  deprived  of  their 
just  and  legal  claims. 

Sixth — Because  that  the  said  Judah  Barrett,  on  the  thirty-first  of  July,  in  the 
year  of  our  Lord  one  thousand  eight  hvmdred  and  thirty-eight,  fraudulently  con- 
veyed a  house  and  lot  of  land  in  the  town  of  Columbia,  in  the  State  of  South 
Carolina,  situate  on  the  east  side  of  Richardson  street,  at  the  corner  of  Richardson 
and  Plane  streets,  fronting  on  Richardson,  measuring  on  the  said  street  fifty-two 
feet,  and  on  Plane  street  two  hundred  and  eighty  feet ;  also,  another  house  and 
lot  of  land  in  Columbia,  in  the  State  aforesaid,  on  the  west  side  of  Richardson 
street,  fronting  on  Richardson  street,  sixty-seven  feet,  running  west  on  Assembly 
street,  four  hundred  and  seventeen  feet,  and  fronting  on  Assembly  street,  eighty- 
seven  feet :  And  also,  another  house  and  lot  of  land  in  Columbia,  in  the  State 
aforesaid,  situated  at  the  corner  of  Assembly  and  Washington  streets,  fronting 
and  containing  on  Washington  street,  two  hundred  and  eight  feet,  and  on  Assem- 
bly street  eighty-eight  feet ;  and  also,  a  large  number  of  negro  slaves,  to  his  son- 
in-law,  Jacob  Cohen,  without  valuable  consideration  for  the  same,  with  the  intent 
to  delay,  hinder  and  defraud  the  creditors  of  him  the  said  Judah  Barrett. 

Seventh — Because  that  the  said  Judah  ]5arrett  has  omitted  in  the  aforesaid 
schedule,  divers  other  pi-operty  in  his  possession  at  the  time  of  the  filing  of  the 
same,  both  in  the  States  of  South  Carolina,  Mississippi,  Alabama,  Arkansas  and 
elsewhere. 

H.  A.  DE  SAUSSURE,  xittorney  for  Relators. 

And  the  said  Judah  Barrett,  by  Wilson,  his  attorney,  comes  and  defends  the 
wrong  and  injury,  when  and  so  forth,  and  saith  he  is  not  guilty  of  the  said 
several  premises  in  manner  and  form  as  in  that  behalf  as  alleged  against  him, 
and  of  this  he  puts  himself  upon  the  country,  and  so  forth. 

And  for  farther  plea  in  this  behalf,  the  said  defendant  says  that  the  said  several 
conveyances  and  deeds  alleged  to  have  been  executed  by  the  said  Judah,  in  the 
3d,  4th,  r)th  and  (Jth  specifications  above  set  forth,  were  not  executed  at  any  time 
within  tliree  months  preceding  the  time  of  filing  the  petition  of  the  said  Judah  for 
his  discharge,  under  the  Acts  of  the  General  Assembly  made  for  the  relief  of 
insolvent  debtors,  and  this  he  is  ready  to  verify ;  wherefore,  he  prays  judgment, 
whether  the  said  relators  ought  to  be  permitted  to  proceed  further  as  against  him 
upon  the  said  specifications,  or  any  one  of  them. 

WILSON,  for  defendant. 


100  CHARLESTON,  FEBRUARY,  1841.      VOL.  L  [*150 

Act  of  1S33,  that  is  not  now  required.  Notwithstanding  Mr.  Yeadon 
objected  that  the  suggestion  was  not  sworn  to,  I  ruled  that  the  plaintiffs 
were  properly  before  me  and  entitled  to  proceed.  I  refused  to  strike 
out  any  of  the  allegations  of  fraud  in  the  suggestion.  None  of  them 
seemed  to  rae  to  be  obnoxious  to  the  charge  of  being  ''frivolous,^''  and 
it  is  only  for  this  cause  that  I  should  have  been  justified  in  striking  them 
out.  The  special  objections  taken  in  the  6th,  7th,  &th,  9th,  lUth  and 
nth  grounds  of  appeal,  to  the  sufiiciency  of  the  allegations  of  fraud,  and 
the  finding  of  the  jury  thereon,  will  be  sufficiently  understood  by  referring 
to  the  record.  It  ought,  however  to  be  remarked,  that  if  these  objections 
are  of  any  value,  they  ought  to  have  been  taken  by  the  way  of  special 
demurrer,"^  and  I  presume  the  Court  will  be  very  well  satisfied  after  verdict 
that  enough  appears  on  the  record  to  show  that  the  defendant  is  not 
^.  f. ,  -,  entitled  to  the  benefit  of  the  Act.  *In  the  course  of  the  case,  Mr. 
-J  Cohen  produced,  under  a  sw.&pa??ia  duces  tecum,  the  deeds  to  him. 
It  was  held  that  a  witness  so  subpoenaed  and  attending  need  not  be 
sworn,  and  that  the  papers  must  be  produced.  Having  now  disposed  of 
the  preliminary  matters,  I  will,  as  well  as  I  am  able,  state  the  case  as  it 
appeared  in  proof  under  the  different  heads  of  fraud.  The  second  alle- 
gation in  the  suggestion  was,  that  the  defendant  had  in  his  hands  a  large 
sum  of  money,  $21,650,  not  included  in  his  schedule.  It  appeared  (if 
the  sale  to  Cohen  was  bona  fide,)  that  on  the  31st  July,  1838,  the  de- 
fendant sold  to  Jacob  Cohen,  his  son-in-law,  his  houses  and  lots  in 
Columbia,  (not  before  conveyed,)  for  the  sum  of  $16,500,  and  sixteen 
slaves  for  $5,150.  His  letter  to  his  creditors  of  the  1st  of  August,  stated 
that  he  had  made  this  sale  to  enable  him  to  begin  business  again,  and 
that  for  the  lots  he  received  $10,000  cash,  and  the  balance  was  to  be  paid 
in  two,  four  and  six  months,  and  that  the  price  of  the  slaves  was  to  be 
paid  in  sixty  days.  The  defendant  was  unable  to  show  what  Imd  become 
of  this  large  sum  of  money  (if,  in  point  of  fact,  he  ever  received  it.)  His 
counsel  contended  that  he  had  gambled  it  away.     It  appeared  that  when 


152] 


he  engaged  in  gaming,  he  ])ursued  it  without  *fear  or  judgment. 


I  sui)posed,  from  the  proof,  that  when  once  fairly  embarked,  he 
would  have  hazarded  every  thing  he  owned.  It  was  proved  by  a  man  of 
the  name  of  Davega,  that  the  defendant  gambled  during  the  last  races  on 
the  race  course  and  in  the  gaming  houses  in  the  City,  and  lost  con- 
siderably as  Barrett  said.  He  said  the  defendant  had  lived  with  him  for 
the  last  ninety  days,  in  the  bounds,  without  any  apparent  means  of 
defraying  even  ordinary  expenses.  He  proved  that  defendant  had 
escapc/l. 

Ill  tlic  third  allegation,  the  plaintilTs  charged  that  the  defendant  had 
not  emitraced  in  his  schedule  large  quantities  of  land  and  town  lots  ia 
the  south-west. 

The  evidence  consisted  of  the  defendant's  written  statements  of  entries 
and  i»iirchHSos  of  lands  for  himself  and  others.  To  the  plaintiff,  Sher- 
man, as  one  of  his  co-partners,  he  stated  entries  and  purchases  to  the 
nmouiit  of  880,100.  To  Dr.  Wells  he  stated  an  entry  or  purchase  of 
$17^)0,  of  which  he.  Wells,  was  to  have  one  half  of  the  profits. 

Tlic  fourth  and  fifth  allegations  charged  that  the  conveyance  of  a 
house  and  lot  in  Columbia,  and  nine  slaves,  to  or  for  the  use  of  his  wife, 


152] 


SHERMAN    &    DEBRUHL    VS,   BARRETT.  101 


Eliza  Barrett,  or  Eliza  Smith,  were  fraudulent.  *UiKler  this  head  r^-ico 
it  appeared  that  Barrett,  at  or  about  the  time  of  these  con-  '- 
veyances,  was  indebted  to  the  amount  of  $23,195.  In  his  letter  to  his 
creditors  of  the  first  of  August,  1838,  which  was  a  little  sul)sequent  to 
these  conveyances,  he  stated  that  the  proceeds  of  his  alleged  sale  to 
Cohen,  $21,500  would  not  pay  his  debts 

The  grantee,  Eliza  Barrett,  or  Smith,  lived  with  the  defendant  from 
1820.  When  their  intercourse  first  commenced  he  was  a  married  man. 
His  then  wife  died  at  some  time  between  '29  and  '38.  The  conveyances 
were  to  Col.  Chappell,  as  a  trustee,  for  the  use  of  Eliza  Smith,  and 
stated  valuable  consideration,  but  it  was  clear  from  the  proof  and  the 
papers  adduced  that  all  these  considerations  might  be  referred  to  future 
or  past  cohabitation.  The  defendant,  on  the  6th  December,  1837,  drew 
an  order  on  Stribling,  for  the  payment  of  $45,  rent  to  my  wife,  Eliza 
Barrett.  While  the  defendant  was  absent  at  the  west,  he  addressed 
letters  to  her  as  his  wife,  and  in  the  name  of  "Eliza  Barrett."  He 
desired  Coleman,  as  she  was  illiterate,  to  write  replies  for  her,  which  he 
did.  He  asked  her  how  he  should  sign  the  letters  in  reply.  She  re- 
plied, answer  the  defendant's  letters,  by  which  he  understood  her  to 
direct  him  to  sign  her  name  as  his  wife,  Eliza  Barrett.  He  said  the 
report  was  that  tliey  were  married  in  North  Carolina.  On  being  asked 
by  the  defendant's  counsel,  whether  he  believed  a  marriage  in  fact  .lad 
taken  place,  he  said  he  did  not. 

John  Shultz  proved  that  the  defendant  asked  him  in  December,  1836, 
to  go  to  his  house,  to  witness  a  conveyance  to  be  executed  by  Eliza. 
He  told  him  that  they  were  married  in  North  Carolina.  When  she  was 
about  to  sign  the  deed,  the  defendant  wrote  her  name  Eliza  Smith,  and 
she  made  her  mark.  He  said  "  you  know  what  you  promised  me  in  North 
Carolina;"  she  said  yes;  he  said,  "you  must  stick  to  that."  The 
defendant  is  a  Jew,  and  Eliza  Smith  is  not.  Told  the  witness  the  reason 
why  he  wished  to  conceal  his  marriage  was  on  account  of  his  faith. 
Witness  said  it  was  a  question  with  him  whether  they  were  ever  married. 
In  all  the  conveyances  and  mortgages  made  by  the  defendant  she  did  not 
join  or  renounce  dower.  The  defendant  was  in  the  possession  of  the 
house  and  personal  property  conveyed  to  her  to  the  time  of  his  removal 
to  Charleston,  which  was  in  '38,  I  suppose  about  the  date  of  his  con- 
veyance to  Cohen  ;  though  it  might  *have  been  at  an  earlier  day,  p^,  r. 
for  there  was  no  certain  proof  in  the  matter.  L 

In  the  sixth  allegation,  the  conveyances  to  Cohen  were  charged  to  be 
fraudulent.  The  proof  was,  that  on  the  day  when  the  deeds  were  exe- 
cuted, Cohen  gave  to  the  defendant  a  check  ;  but  the  amount  did  not 
appear,  nor  did  it  appear  whether  it  had  or  had  not  been  ])aid.  The 
value  of  the  houses  and  lots  conveyed,  were  proved  by  Gregg  and 
McLaughlin,  to  be  $36,500  ;  they  proved  the  rents  to  be  less  than  10 
per  cent.  ($2,300,)  but  notwithstanding  their  unproductiveness  was 
presented  to  their  attention,  they  still  asserted  their  value  to  be  $36,500. 
These  conveyances  covered  the  whole  remaining  property  of  the  de- 
fendant, except  his  interest  in  the  western  lands,  and  the  property  con- 
veyed to  his  wife  or  concubine,  which  ever  she  may  have  been.  Mr. 
Cohen  was  proved  to  be  a  man  of  good  character.  His  means  to  make 
such    a    purchase    was  rather  dubious.     He  had  in   his    possession   ais 


102  CHARLESTON,  FEBRUARY,  1841.      VOL.  L  [*154 

owner,  a  large  rice  plantation,  (six  hundred  and  fifty-eight  acres,)  and 
fifty  slaves.  The  conveyances  to  Colien  were  of  the  houses  and  lots  in 
Columbia,  already  spoken  of,  for  $16,500,  and  sixteen  slaves  for  $5,150. 
The  defendant,  according  to  his  letter  at  the  date  of  these  conveyances, 
owed  more  than  $21,650. 

The  seventh  allegation  was  a  general  one,  covering  pretty  ranch,  in 
general  terras,  the  charges  raade  in  the  second,  third,  fourth,  fifth  and 
sixth  allegations. 

The  jury  were  instructed,  first,  as  to  the  second  allegation.  If  they 
believed  the  sale  to  Cohen  to  be  bona  fide,  and  that  the  defendant  had 
received  the  proceeds,$21,650,  to  enquire  what  had  become  of  that  sum. 
They  were  told  it  was  for  the  defendant  to  show  this.  This  was 
attempted  to  be  done  by  showing  his  reckless  character  as  a  gambler, 
and  his  gaming  within  a  year  previous  to  his  application  for  a  discharge. 
They  were  told  that  they  might  find  he  had  gamed  away  $21,650  but  I 
advised  them  that  I  thought  the  evidence  hardly  warranted  the  conclusion. 
I  told  them  then  that  the  effect  of  gaming  within  a  year,  would  exclude 
the  defendant  from  the  benefit  of  the  Act ;  but  I  said  not  to  them,  that 
it  would  have  the  same  effect  as  a  conviction  of  fraud.  Indeed,  upon 
Mr.  Yeadou's  reciuisition,  at  the  close  of  my  charge,  I  told  them  it  would 
not  have  the  same  effect.  If  I  said  any  thing  like  what  is  stated  in  the 
^icc-j  13th  ground,  I  have  no  recollection  *of  it.  On  the  third  allega- 
^  tion  they  were  told  that  the  proof  was  plain,  that  the  defendant 
had  an  interest  in  western  lands  not  included  in  the  schedule.  To  under- 
stand the  defendant's  fourteenth  ground,  it  is  necessary  to  understand 
the  course  of  the  argument.  I  had  decided  that  the  defendant  could  not 
noxo  amend  his  schedule.  The  defendant's  attorney,  in  words,  appealed 
from  my  decision  to  the  jury,  and  contended  that  they  were  to  consider 
the  amendment  as  made.  In  commenting  on  this  part  of  the  case,  I 
said  the  course  pursued  was  a  most  unjustifiable  one  ;  my  error,  if  I  had 
committed  one,  was  not  to  be  corrected  l)y  the  jury,  but  by  the  Court  of 
Appeals,  That  they  could  not  find  upon  facts  which  did  not  appear; 
and  that  there  was  no  evidence  that  he  had  omitted  the  western  lands 
through  ignorance,  inadvertence  or  mistake.  On  the  fourth,  fifth  and 
sixth  allegations,  the  jury  were  instructed  that  the  limitation  of  three 
months  in  the  jirison  bounds'  Act,  applied  to  the  preference  of  one  credi- 
tor to  another,  and  not  to  fraudulent  conveyances 

As  to  the  conveyances  of  Eliza  Barrett,  alias  Smith,  they  were 
instructed  that  they  could  not  be  supported  if  she  was  the  defendant's 
wife.  They  were  referred  to  the  evidence  in  this  behalf,  and  they  were 
told  that  on  it  lliey  might  find  her  to  be  his  wife.  In  commenting  upon 
the  deeds,  supposing  her  to  be  his  concubine  and  not  his  wife,  the  dis- 
tinction between  a  consideration  arising  from  a  past  or  future  cohabi- 
tation, was  carefully  i)r)inted  out ;  and  the  jury  were  told,  if  the 
consideration  of  either  or  both  the  deeds  was  future  cohabitation,  then 
that  one  or  both  could  not  be  supported.  For  Barrett  had  retained 
po.ssession  of  the  i)roperty  up  to  a  period  when  he  was  insolvent.  If  he 
had  se|)arate(l  himself  from  the  pos.session,  then  his  gift  of  the  personal 
property,  if  made  when  he  was  abundantly  able  to  pay  his  debts,  would 
be  good.  But  this  could  not  now  avail,  as  the  proof  was  clear  he  had 
the  possession  to  May,  1838. 


155] 


SHERMAN    &    DEBRUHL    VS.    BARRETT.  103 


[*156 


In  reference  to  the  deed  to  Cohen,  they  were  told  that  if  they  believed 
the  consideration,  $21,650,  was  not  paid,  then  they  might  find  these 
deeds  to  be  fraudulent.  For  they  were  conveyances  of  the  debtor's  most 
valuable  estate,  within  his  creditor's  reach,  on  the  verge  of  insolvency. 
These  were,  since  Twine's  case,  regarded  as  strong  badges  of  fraud.  It 
might  be,  that  comparing  the  price  paid,  with  the  value  *of  the 
property,  they  might  with  these  other  circumstances,  find  the  con- 
veyances to  be  fraudulent.  Here,  I  suppose,  is  the  alleged  error  com- 
plained of  in  the  sixteenth  ground.  I  did  say  to  the  jury,  that  they 
ought  to  rely  on  Gregg  and  McLaughlin's  testimony,  in  fixing  the  value 
of  the  real  estate  conveyed  to  Cohen,  at  36,500,  although  the  rents  do 
not  amount  to  10  per  cent.  ;  and  I  have  yet  to  learn,  both  as  a  Lawyer 
and  a  Judge,  that  there  is  any  error  in  believing  respectable  and  intelli- 
gent men,  acquainted  with  the  property,  although  their  estimated  value 
should  exceed  a  sum  on  which  the  annual  rent  was  less  than  10  per 
cent. 

The  jury  found  against  the  defendant  on  the  second,  third,  fourth,  fifth, 
sixth  and  seventh  allegations. 

The  defendant  appealed,  on  the  annexed  twenty-three  grounds  : 

1.  Because  his  Honor,  before  issue  joined  on  the  suggestion,  refused  per- 
mission to  the  defendant  to  withdraw  or  discontinue  his  petition  and  schedule. 

2.  Because  his  Honor  refused  to  continue  the  cause  on  the  application  of 
defendant,  although  it  was  manifest,  from  the  face  of  the  third  count,  that  the 
defendant  could  not,  by  any  human  effort,  have  procured  the  testimony  neces- 
sary to  his  defence  against  the  allegations  therein  contained,  between  the  day 
of  the  filing  of  the  suggestion,  January  16,  and  the  days  of  the  trial  of  the  cause, 
January  31  and  February  1,  1840. 

3.  Because  his  Honor,  before  issue  joined  on  the  suggestion,  refused  per- 
mission to  the  defendant  to  amend  his  schedule,  by  inserting  therein  an 
assignment  of  all  his  right,  title,  and  interest  in  the  property  alleged  by  various 
counts  in  the  suggestion  to  be  held  by  fraudulent  conveyances  from  the  defen- 
dant;  and  especially  because  his  Honor  refused  to  allow  the  schedule  to  be 
amended  in  relation  to  the  western  and  southwestern  lands,  alleged  in  the 
third  count  to  be  the  property  of  the  defendant,  although  it  clearly  appeared 
from  the  affidavit  subsequently  submitted  to  his  Honor,  and  from  the  testimony 
of  Mr.  De  Saussure,  that  the  omission  to  insert  these  lands  arose  from  ignorance 
or  mistake  on  the  part  of  the  defendant. 

4.  Because  his  Honor  conqjelled  the  defendant  to  take  issue  and  go  to  trial 
on  a  suggestion  unsupported  by  oath  or  affidavit. 

■*5.  Because  his  Honor,  before  issue  joined  on  the  suggestion,  refused   r*i-f^ 
a  motion  on  behalf  of  defendant,  to  strike  out  the  irreguhir,  informal,  and  ^ 
defective  counts  of  the  suggestion,  and  compelled  the  defendant  to  take  issue 
on  all  of  them. 

6.  Because  the  second  count  is  defective,  in  not  alleging  the  time  when  the 
money  alleged  to  have  been  received  by  defendant,  was  received  by  him,  nor 
the  person  or  persons  from  wdiom  it  was  received,  and  thereibre  the  count 
cannot  support  the  finding  of  the  jury. 

7.  Because  the  third  count  is  multifold  and  voluminous,  and  blends  various 
inconsistent  and  and  alternative  issues,  and  therefore  cannot  support  the  finding 
of  the  jury. 

8.  Because  the  fourth  count  shows  on  its  face  that  the  conveyance  therein 
mentioned  and  alleged  to  be  fraudulent,  was  made  more  than  three  months 
before  the  filing  of  defendant's  petition  for  his  discharge,  and  the  finding  of  the 
jury  thereon  is  contrary  to  law,  and  ought  to  be  set  aside. 


104  CHARLESTON,  FEBRUARY,  1841.      YOL,  I.  [*157 

9.  Because  the  fifth  count  and  the  finding  of  the  jury  thereon,  are  also  liable 
to  the  same  objection. 

10.  Because  the  sixth  count  and  the  finding  of  the  jury  thereon,  are  also 
liable  to  the  same  objection. 

11.  Because  the  seventh  or  last  count  is  informal,  irregular  and  indefinite, 
and  entirely  too  vague  to  support  the  finding  of  the  jury  thereon. 

12.  Because  the  finding  of  the  jury  on  the  second,  is  inconsistent  with  their 
findintr  on  the  sixth  count,  and  a  new  trial,  therefore,  on  both,  should  be 
awarded. 

13.  Because  his  Honor,  it  is  respectfully  submitted,  erred  in  charging  the 
jury  that  the  limitation  of  three  months,  in  the  clause  in  the  prison  bounds' 
Act,  applies  only  to  assignments  and  payments  to  one  creditor  in  preference  to 
another,  and  not  to  fraudulent  conveyances.  Whereas  it  is  submitted  that  the 
plain  letter  and  meaning  of  the  clause,  show  its  applications  to  the  latter  as 
well  as  to  the  former,  and  the  defendant's  plea  to  that  effect  should  have  been 
sustained. 

14.  Because  his  Honor  erred  in  charging  the  jury  that  it  was  questionable 
whether  their  finding  that  the  defendant  had  lost  the  money  alluded  to  in  the 
second  count,  by  gaming,  within  twelve  months  preceding  the  filing  the 
petition,  would  not  be  attended  with  the  same  consequences  of  perpetual 
j^,  -n-i   imprisonment  and  disfranchisement  of  insolvent  relief,  as  a  conviction  *of 

J  fraud;  whereas  it  is  submitted  that  the  conviction  of  loss  of  money  by 
gaming  within  the  inhibited  period,  would  only  suljmit  the  defendant  to  im- 
prisonment, until  payment  of  the  debts  for  which  he  was  arrested,  or  in* other 
words,  that  it  would  only  deny  him  relief  in  the  particular  case  without  payment 
of  the  money  due  ;  and  operate  no  disfranchisement  in  other  cases  ;  and  as  this 
was  a  material  point  in  the  case,  his  Honor,  (as  he  was  requested  to  do,) 
should  have  so  charged  the  jury. 

15.  Because  his  Honor  erred  in  charging  the  jury  that  they  had  no  right  to 
acquit  the  defendant  of  the  charge  of  rendering  a  false  schedule,  on  the  ground 
that  he  had  inadvertently,  iguorantly,  or  by  mistake,  omitted  to  insert  in  his 
schedule  the  property  alleged  in  the  suggestion  to  belong  to  him. 

16.  Because  his  Honor  erred  in  charging  the  jury  that  a  bond  or  conveyance 
of  property,  in  consideration  of  future  cohabitation,  made  by  one  in  good  circum- 
stances, would  be  void  as  against  creditors,  whose  claims  against  the  donor 
originated  long  subsequent  to  the  bond  or  conveyance  ;  whereas  it  is  submitted 
that  such  bond  or  conveyance,  under  such  circumstances,  would  stand  on  the 
footing  of  any  other  voluntary  bond  or  conveyance,  and  would  be  valid  against 
subsequent  creditors. 

IT.  Jiecause  his  Honor  erred  in  charging  the  jury  that  in  estimating  the 
value  of  the  real  estate  alleged  to  have  been  fraudulently  conveyed  by  defend- 
ant, they  ought  to  rely  on  the  valuation  of  the  two  witnesses,  (Messrs. 
aicLaughlin  and  Gregg,')  who  fixed  the  value  at  §36,000,  but  estimated  the 
rent  at  the  most,  but  S2,6.)0,  which  showed  their  estimate  to  be  not  worth  a 
straw,  especially  too.  as  one  of.tliem  (Mr.  Gregg,)  admitted  that  he  would  not 
buy  the  [)ro])crty  at  his  own  estimate. 

18.  Ik'cause  the  multii)lied  and  alternative  charges  in  the  third  count, 
rel.iting  to  the  western  and  southwestern  lands,  were  unsustained  by  the 
evidence,  and  because  there  was  no  proof  whatever  of  fraud  in  the  conveyances 
to  .Jacol)  Cohen,  or  those  to  Kliza  Smith  ;  but  the  proof,  on  the  contrary  was, 
that  those  conveyances  were  bona  tide  and  for  valuable  consideration,  and  the 
verdict  of  the  jury  in  respect  to  these  conveyances,  and  in  respect  to  the 
western  and  southwestern  lands,  ought  to  be  set  aside. 

*1'>91       *^'^'  ^^'-'■'^"•''''  '''*^  Honor  charged  the  jury  that  there  was  sufiicient 
J   evidence  to  authorize  them  to  find  that  Judah  Barrett  and  Kliza  Smith 
were  man  and  wife,  whereas  tlie  plaintiifs  tliemselves  by  both  documents  and 
witnesses  provi'd  tlio  contrary  to  Ite  the  case. 

20.  Becau.ie  there  was  no  proof  whatever  applicable  to  the  seventh  count. 


*159]       SHERMAN  &  DEBRUHL  VS.    BARRETT.         105 

and  the  finclin:r  of  the  jury  thereon,  Iiaving  been  entirely  without  evidence, 
ought  to  be  set  aside. 

21.  Because  his  Honor  ruled  that  Mr.  Jacob  Cohen,  a  witness,  served  with 
siipovia  duces  trrinn,  in  behalf  of  the  plaintiffs,  should  be  compelled  to  produce 
the  papers  called  for  by  the  subpcrna,  without  being  sworn  as  a  witness, 
although  such  papers  were  used  to  the  prejudice  of  his  rights. 

22.  Because  his  Honor  erred  in  charging  the  jury  that  it  was  not  necessary 
for  them  to  believe,  or  for  it  to  be  proved,  that  defendant  had  been  guilty  of 
■wilful  and  deliberate  perjury,  in  order  to  convict  that  defendant  of  rendering  a 
false  schedule,  and  in  refusing  to  charge  the  jury  that  such  proof  was  necessary. 

23.  Because  the  verdict  was,  in  other  respects,  contrary  to  law  and  evidence. 

Curia,  per  O'Neall,  J.  Where  the  grounds  of  appeal  are  not 
noticed  in  this  opinion,  they  are  considered  by  the  Court  as  sufficiently 
answered,  explained  or  ruled,  by  the  report  of  the  Judge  below. 

The  third  and  fourteenth  grounds  may  be  considered  together.  For 
they  both  in  fact  relate  to  the  amendment  of  the  schedule.  If  the 
fourteenth  ground  was  right,  it  would  be  no  more  than  this  :  the  jury 
would  be  permitted  to  make  for  the  defendant,  the  amendment  which  he 
could  not  do. 

This  would  be  giving  to  them  powers  which  I  never  supposed  to  rest 
any  where.  But,  without  wasting  words  about  it,  the  rule  may  be  stated 
at  once,  that  the  jury  cannot  inquire  beyond  the  issue  ;  that,  in  this  case, 
was,  is  the  defendant's  schedule  true  or  false  ?(«)  The  ground  admits 
that  it  was,  but  insists  that  that  which  was  false  in  fact,  the  jury  should 
find  true  in  fact.  This  they  had  no  right  to  do.  There  is  no  doubt 
that  the  defendant's  schedule  is  amendable  within  the  discretion  of  the 
Circuit  Court.  (Z>)  But  I  do  not  understand  by  discretion,  when  used 
as  a  law  ]ihrase,  the  power  of  doing  as  *the  Judge's  caprice  may  r^tipn 
direct.  He  is  invested  with  discretionary  powers  over  many  L 
matters  of  practice,  to  subserve  the  ])urposes  of  justice.  But  in  reference 
to  the  subject  now  before  us,  the  discretion  of  tlie  Circuit  Judge  was 
never  intended  to  help  a  fraudulent  debtor  out  of  the  meshes  of  the  net 
into  wdiich  either  his  fraud  or  folly  may  have  cast  him.  Here  I  never 
could  perceive  that  the  defendant  had  "inadvertently,  ignorantly  or  by 
mistake,",  omitted  to  insert  in  his  schedule  the  property  alleged  in  the 
suggestion  to  belong  to  him.  To  say  that  this  was  the  fact,  would  be  to 
say  that  a  debtor  did  not  know  of  what  his  estate  consisted.  f-Je  has, 
according  to  the  verdict  of  the  jury,  left  out  of  his  schedule  all  of  his 
most  valuable  property  and  rights.  When  detected  in  this,  and  he  is 
about  to  be  saddled  with  the  consequences,  he  begs  to  be  secured  from 
them  by  amendment.  It  is  true  "  that  ceasing  to  do  evil  and  learning  to  do 
well,"  in  the  sul)limc  book  of  holy  inspiration,  with  which  the  defendant 
ought  to  be  acquainted,  is  the  condition  on  which  the  penalties  of  the 
moral  world  are  waived.  But  here,  he  who  wilfully,  or  with  the  means 
of  knowledge  within  his  reach,  does  wrong,  falls  under  that  legal  maxim, 
"ignoranta  legis  neminen  excusat,^^  and  must  abide  the  consequence. 
This  is  the  case  with  the  defendant.  He  made  the  issue,  tliat  he  had 
presented  a  schedule  of  his  whole  estate  ;  thi-s  w^as  verified  by  the  solemn 
sanction  of  his  oath  ;  if  in  fact  he  did  not  return  a  tithe  of  his  estate,  how 
can  he  complain,  that  this   omission  is  set  down  to  any  thing  else  than 

(fl)  1  Rich.  4G3.     An.  (h)  Ante  33.     An. 


106  CHARLESTON,  FEBRUARY,  1841.      VOL.  I.  [*160 

ig:iiorance  of  tlie  fact  ?     The  predicate  of  the  amendment  being  thus 
removed,  the  defendant  lias  nothino;  to  stand  upon. 

But,  I  go  still  farther  ;  an  amendment  oug:ht  never  to  be  made  when  it 
will  surprise  or  delay  the  other  party.  That  was  peculiarly  the  case. 
They  had  traversed  the  defendant's  schedule,  and  specified  its  falsehood, 
and  at  the  moment  of  trial,  when  they  are  waiting  to  prove  their  alle- 
gations, the  defendant  asks  by  amendment  to  destroy  the  whole  issue. 
This  is  going  to  defeat  the  ends  of  justice,  and  cannot  )je  allowed  In 
general,  a  scliedule  is  amendable  where  it  is  apparent  that  the  omissioa 
resulted  from  "  ignorance,  inadvertence  or  mistake."  The  usual  illus- 
tration is,  where  a  man  leaves  out  some  trifling  article  of  property,  to 
*1R11  ^"''i^'^  ^^^^  attention  *was  not  turned  ;  in  such  a  case,  he  may  well 
-^  be  supposed  to  liave  accidentally  omitted  it. 

To  the  fourth  ground  the  following  answer  may  be  given  :  under  the  Act 
of  1833,  (Acts.  p.  43,)  a)  if  the  defendant  be  "accused  of  fraud,"  it  is  to 
be  tried  by  jury.  (6)  Whenever  the  right  of  a  prisoner  to  be  discharged 
is  resisted,  on  the  ground  of  fraud,  there  is  nothing  which  requires  that 
there  should  be  any  showing  on  oath.  But  still  if  the  result  of  the 
allegation  would  be  to  delay  the  hearing  of  the  debtor's  application 
then  I  have  no  doubt  that  the  Circuit  Judge,  in  the  exercise  of  a  sound 
discretion,  might  require  the  creditor  to  verify  his  accusation  by  affidavits. 
If  there  was  any  merit  in  this  objection,  it  ought  to  have  been  taken 
when  the  plaintiffs  appeared  before  my  brother  Evans  and  objected  to 
the  defendant's  discharge,  and  were  permitted  to  file  their  suggestion. 
When  the  case  was  called  for  trial  it  was  too  late  to  make  the  objection. 

The  eighth  and  twelfth  grounds  may  be  considered  together.  The  prison 
bounds'  Act,  in  the  7th  sec.  (P.  L.  457, )(c)  provides  that  no  prisoner 
shall  be  discharged  "  who  shall  have,  within  three  months  before  his  or 
her  confinement,  or  at  any  time  since,  paid  or  assigned  his  estate,  or  any 
part  thereof,  to  one  creditor,  in  preference  to  another,  or  fraudulently 
sold,  conveyed  or  assigned  his  estate  to  defraud  his  creditors."  Accord- 
ing to  my  reading,  these  two  parts  of  the  same  sentence  are  distinct, 
and  have  not  the  same  qualification  of  time,  (c/)  The  limitation  of  three 
months  apjjlies  solely  to  undue  preference.  It  was  reasonable  that 
there  should  be  some  limitation  in  this  behalf.  For  a  man  might  be 
allowed,  at  a  period  when  insolvency  was  not  apparent  and  manifest,  to 
do  an  act  which  at  a  later  day  it  would  be  altogether  wrong  to  permit. 
But  if  a  man  sells  or  conveys  his  estate  to  defraud  his  creditors,  his  con- 
veyance is  most  commonly  inoperative,  and  the  estate  thus  sold  or 
conveyed,  remains  his  agaiiist  his  creditors,  and  its  omission  in  his  sched- 
ule might,  when  he  was  wholly  silent  on  the  subject,  subject  him  to  the 
penalties  of  a  false  schedule  :  but  where  the  conveyance  might  be  good 
in  the  hands  of  the  alienee,  still  the  defendant  has,  in  thus"  putting  the 
property  out  of  the  reach  of  his  creditors,  been  guilty  of  a  fraud  on  them, 
♦1621  ^^''''^"'^  is  equally  criminal  whether  it  be  within  *three  months  or 
-■  at  a  more  distant  day.  The  concluding  part  of  the  section  shows 
that  this  is  the  true  construction.  It  proviiles  "  whenever  a  prisoner 
shall  be  accused  by  the  plaintiff,  or  his  agent,  of  fraud,  or  of  his  having 

(«)   0  Kt.1t.  402,  §  1.     An.  (h)  Blease  vs.  Farrow,  9  Rich.  49.     An. 

(c)  5  btat.  78.     An.  {d)  7  Rich.  473;  2  Strob.  139.     An. 


*162]  SHERMAN    &   DEBRUHL    VS.    BARRETT.  107 

given  an  undue  preference  to  one  creditor  to  tlic  prejudice  of  the  jilaintiff, 
or  of  having  made  a  false  return,  or  of  liaviug  gone  without  tlie  prison 
walls,  or  prison  rules,  as  the  case  may  be,  it  shall  be  lawful  for  the  Judge 
or  Justice  before  whom  the  ])risoner  is  brought,  to  direct  a  jury  to  be 
impannelled  and  sworn  to  determine  the  fact  "  From  these  provisions, 
referring  to  the  former  ones,  being  so  ]ierfectly  distinct,  we  are  very 
properly  brought  to  conclude  that  a  fraudulent  sale  or  conveyance, 
and  a  fraudulent  preference,  are  two  wholly  distinct  things,  and  that  the 
limitation  of  time  was  intended  to  attach  to  the  preference  of  one  cred- 
itor to  another. 

The  fifteenth  ground,  as  explained  in  the  report,  is  without  foundation. 
The  instruction  given  by  the  presiding  Judge  to  the  jury,  enabled  them 
to  understand  fully  the  facts  on  which  they  were  to  pass  and  the  law 
applicable  to  them. 

If,  in  point  of  fact,  Eliza  Smith,  or  Barrett,  was  the  wife  of  the  defendant, 
then  there  was  certaiidy  no  doubt  that  the  deeds  could  not  be  sui)j)orted. 
For  in  this  point  of  view  they  were  voluntary.  That  there  was  evidence 
that  they  were  man  and  wife,  cannot  be  denied,  unless  it  be  that  acknowl- 
edgments of  each  other  as  such,  and  living  together  and  cohabiting,  be 
no  evidence  of  such  a  fact ;  no  one  will  hardly  venture  that  far.  That 
there  was  conflicting  and  opposing  evidence,  makes  the  very  case  to  be 
resolved  by  the  verdict  of  a  jury.  And  if  the  case  depended  upon  this 
question,  I  should  say  that  they  ought  to  be  regarded  as  man  and  wife. 

But  if  it  is  conceded  that  they  never  were  married,  and  that  Eliza  was 
Judah's  concubine,  then  I  think  the  case  is  also  free  from  difiBculty.  If 
the  deeds  were  executed  to  procure  a  continuance  of  cohabitation,  then 
it  is  beyond  all  doubt  that  they  are  void, (a)  I  think  the  evidence  would 
even  justify  this  conclusion.  For  the  parties  lived  and  cohabited 
together  after  the  execution  of  the  deeds,  and  had  the  common  enjoyment 
of  the  property. 

If,  however,  the  deeds  stand  on  the  footing  of  voluntary  conveyances 
to  a  kept  mistress,  as  the  counsel  seems  to  *desire,  still  the  verdict  r;ici/.q 
could  not  be  otherwise  than  it  is.  That  a  man,  not  in  debt,  may  L 
do  any  act  of  folly  he  chooses,  is  generally  unquestionable  ;  and  if  that 
had  been  Barrett's  position,  these  deeds  might  have  been  supported. 
But  at  every  moment  of  time  during  his  intercourse  with  Eliza,  he  was 
more  or  less  in  debt.  He  retained  the  possession  of  the  property  to  the 
moment  of  acknowledged  insolvency.  How  a  voluntary  conveyance, 
thus  situated,  is  to  be  supported,  I  am  at  aloss  to  conceive. (6)  Our  cases 
as  to  the  rights  of  creditors,  as  against  voluntary  donors,  must  all  be 
wrong,  or  these  deeds  are  void. 

If  it  were  true,  as  is  contended,  that  the  defendant  made  these  convey- 
to  Eliza,  for  her  services  as  house  keeper,  or  for  any  other  debt,  still  his 
possession  of  the  property  would  render  the  conveyances  fraudulent. 

The  seventeenth  ground  cannot  avail  the  defendant.  For  if  Mr. 
Cohen  paid  the  consideration  acknowledged  by  Barrett,  for  the  houses 
and  lots  and  slaves,  his  deeds  ought  not  to  be  regarded  as  fraudulent. 
Yet  it  may  be,  as  the  plaintiff  alleged,  that  in  fact  no  money  was  paid. 
In  this  respect,   there  was  evidence  from   which  the  jury  might  have 

(a)  Harp.  201.     An.  (6)  2  Bail.  128.     An. 


108  CHARLESTON,  FEBRUARY,  1841.      VOL.  I.  [*163 

concluded  that  the  plaintiff's  allegation  was  true,  and  if  so,  then  the 
defendant  is  rightfully  convicted  of  fraud  under  this  head.  If  they  were 
bona  Me,  the  defendant  had  $21,650,  their  proceeds,  for  which  he  had 
failed  to  account,  and  in  this  respect  he  was  guilty  of  having  made  a 
false  schedule.  The  jury  have  found  both  that  the  deeds  were  fraudulent 
and  that  the  defendant  had  the  consideration,  $21,650,  which  was 
omitted  in  his  schedule.  These  are  inconsistent  findings.  But  reject 
either,  and  the  defendant  is  convicted  of  fraud.  It  is,  therefore,  una- 
vailing to  the  defendant.  As  to  the  western  and  southwestern  lands,  it 
was  plain  that  these,  to  a  large  amount,  were  omitted  in  the  schedule, 
and  as  to  them,  the  falseness  of  his  schedule  was  palpable. 

In  answer  to  the  twentieth  ground,  it  would  be  enough  to  refer  to  the 
return  of  the  subpana  duces  tecum.  It  does  not  require  the  ])erson 
thus  summoned,  to  testif}',  but  to  bring  into  Court  a  paper  which  the 
party  needs.  When  this  is  done,  nothing  further  is  required.  In  the 
case'^of  the  Treasurei-  vs.  Moore,  (3  Brev.  550,)  it  was  ruled  that 
-j,,p  .-,  before  going  into  *trial,  the  plaintiff  had  the  right  to  have  a 
-■  return  made  to  the  subpoena  duces  tecum.  This  shows  that  the 
party  need  not  put  the  person  so  summoned  on  the  stand  as  a  witnes.*. 

The  motion  is  dismissed. 

The  whole  Court  concurred. 

Yeadon,  for  the  motion.    IT.  A.  De  Saussure,  contra. 

Note. — This  case  was  argued  before  the  present  Reporter  was  elected,  and 
postponed  by  the  Court  for  further  consideration,  wliich  will  account  for  the 
omissiou  of  arp;umeut  of  counsel. 


ROBEKTSON    &    GiLFILLIN   VS.    JOHN    SHAXNON.(a) 

Defendant  having  about  $4000,  desired  to  invest  it  in  cotton  for  speculation.  He 
accordingly  applied  to  the  plaintiffs,  who  were  cotton  brokers  in  the  city  of 
Charleston,  and  tliey  purchased  for  him  316  bales  ;  procured  an  advance  on 
their  own  responsibility  of  $12,470,  to  pay  for  the  cotton  so  jiurchased;  shipped 
it  on  board  the  .Josepha,  (a  vessel  designated  by  defendant,)  and  consigned  it, 
according  t,o  the  usages  of  trade,  to  a  house  in  Liverpool.  Subsequent  to  the 
sailing  of  the  vessel,  the  defendant  refused  to  complete  the  contract.  Upon 
this  refusal  this  action  was'  commenced.  Verdict  for  plaintiffs,  S4000.  Held, 
that  the  defendant  was  liable  to  the  plaintiffs  as  vendors  ;  that  there  was  a  sale 
and  delivery ;  and  a  new  trial  was  refused. 

Before  O'Neall,  J.,  at  Charleston,  May  Term,  1840. 

This  was  an  action  of  assumpsit,  brought  to  recover  the  price  of  316 
bales  of  cotton,  bought  by  the  plaintiffs,  as  cotton  brokers  for  the 
defendant. 

Tlie  facts  of  the  case  may  be  stated  as  follows  :  the  defendant  being 
about  to  return  lo  Ireland,  and  having  about  four  thousand  dollars,  in 

(a)  S.  C,  again  and  again,  2  Strob.  419 ;  4  Rich.  323.  Irving,  SheniJ',  vs. 
Robertson,  6  Rich.  228.     An. 


*164]  ROBERTSON    &   GILFILLIN    VS.    SHANNON".  109 

money,  wished  to  invest  it  in  cotton.  The  plaintiff,  GilGllin,*  was  r^i  /.c 
introduced  to  him,  as  a  cotton  broker,  by  Mr.  George  Cotchett,  '- 
and  his  desire  to  purchase  cotton  stated.  He  and  the  plaintiffs  were 
afterwards  together  at  Martin  and  Walter's,  and  at  Jaraes  Adger  &  Co.'s, 
for  the  purpose  of  buying  cotton  ;  it  was  then  stated  in  the  presence  of 
the' defendant,  by  the  plaintiffs,  that  an  advance  was  to  be  procured, 
which,  with  the  defendant's  four  thousand  dollars,  would  enable  them  to 
purchase  for  him  about  three  hundred  bags.  This  arrangement  Mr. 
Walter  thought  he  (Shannon)  understood.  Mr.  Cotchett  thought  when 
he  saw  him  and  the  plaintiffs,  that  he  hardly  understood  it.  The  plain- 
tiffs negotiated  for,  and  obtained  the  advance.  The  defendant  was  not 
known  in  that  part  of  the  transaction  to  Trapman  or  his  agent,  Worther- 
spoon,  who  made  the  advance.  The  party  making  the  advance  contracted 
for  the  freight.  The  plaintiffs,  for  the  defendant,  and  in  his  presence, 
bought  three  hundred  and  sixteen  bales  of  cotton  ;  their  credit  was 
alone  looked  to  for  the  payment;  and  the  cotton  delivered  to  them  by 
Martin  &  Walter,  and  George  Cotchett,  for  James  Adger  &  Co.  The 
defendant  said  he  was  going  to  ship  the  cotton  by  the  barque  Josepha, 
in  which  he  had  obtained  his  passage,  and  that  he  was  "  going  to  go 
with  the  cotton."  The  cotton  was  shipped  from  the  19th  to  the  23rd 
April,  18o9,  The  defendant  was  alongside  the  Josepha  while  the  cotton 
was  going  on  board.  Along  side  of  the  vessel  he  was  informed  by  Gil- 
lillin,  that  if  he  was  not  disposed  to  take  the  whole  venture,  he  could  get 
another  person  to  take  one  hundred  bags;  the  defendant  replied  he 
would  take  the  whole  for  luck.  The  captain  signed,  on  the  23rd  of 
April,  a  receipt  for  the  cotton  shipped  by  Robertson  &  Gilfillin.  On  the 
24:th,  the  bill  of  lading  was  forwarded  ;  (hence,  I  inferred  it  was  signed 
on  or  before  that  day  ;)  which  set  out  the  shipment  by  the  plaintiffs  to 
Coleman  &  Stotleporth,  the  correspondents  of  Trapman,  who  made  an 
advance  of  about  three-fourths  of  the  price  of  the  cotton,  (twelve  thou- 
sand four  hundred  and  seventy  dollars.)  This  was  according  to  the 
course  of  trade,  according  to  which  (said  the  witness,)  the  bill  of  lading 
is  made  out  in  the  name  of  the  shippers,  and  consigned  to  the  corres- 
pondents of  the  house  making  the  advance.  The  invoice  discloses  the 
name  of  the  owner,  for  whose  ultimate  benefit  the  shii)ment  is  made. 
An  invoice  was  sent  on,  and  Mr.  Wortherspoon's  correspondence  stated 
John  Shannon  to  be  the  owner.  The  first  advance  was  made  before 
*Wortherspoon,  the  agent  for  Trapman,  knew  of  any  misunder-  rt-iac 
standing  having  arisen  between  the  plaintiffs  and  defendant,  lie  L 
offered  to  take  one  hundred  bags  of  the  venture,  and  so  did  Mr.  Kerr.  Cot- 
ton continued  to  improve  in  price  until  about  the  sailingof  the  vessel,  12th  of 
May.  The  cotton  went  forward  to  Stotleporth.  It  seemed,  from  the  proof, 
to  be  the  usage  of  trade,  that  cotton  on  which  an  advance  was  made,  was 
pledged,  1st,  to  the  party  making  the  advance  ;  2nd,  to  the  shippers  for 
any  thing  due  to  them  by  the  owner  on  account  of  it.  On  the  20th  of 
April,  the  plaintiffs  paid  Martin  and  Walter,  four  thousand  dollars  in 
cash,  and  on  the  24th  or  25th,  three  thousand  seven  hundred  and  sixty- 
eight  dollars  more,  and  to  Adger  &  Co.,  the  money  for  the  purchase 
from  them  was  subsequently  paid.  On  the  23rd  of  April,  the  defendant 
refused  to  comply  with  his  contract,  and  the  plaintiffs  made  an  affidavit 
to  hold  him  to  bail  for  the  whole  amount  of  the  purchase  of  the  cotton. 


110  CHARLESTON,  FEBRUARr,  1841.      VOL.  I.  [*166 

He  was  arrested  and  went  to  jail  on  the  24th,  where  he  has  ever  since 
remained.  The  plaintiffs  offered  to  credit  the  defendant  witli  the  pro- 
ceeds of  the  cotton  in  Liverpool,  but  this  was  refused.  There  were  sun- 
dry special  counts  in  the  declaration  ;  but  I  thought  the  whole  case 
depended  upon  the  questions  whether  the  plaintiff's  had  sold  the  cotton  to 
the  defendant ;  and  whether  they  had  paid  money  for  his  use  ;  and  that, 
therefore,  the  counts  for  goods  sold  and  delivered,  and  the  money  counts, 
covered  the  whole  case. 

The  jury  were  instructed  in  conformity  to  the  opinion  of  the  Appeal 
Court,  on  the  former  trial  of  this  case. 

They  were  told,  that  to  entitle  the  plaintiffs  to  recover,  as  vendors  of 
the  cotton,  it  must  appear  to  their  satisfaction  that  the  cotton  was  deli- 
vered to  the  defendant.  This,  I  thought,  was  abundantly  shown  in  the 
shipment,  and  his  knowledge  of,  and  assent  to  that  fact.  Although  this 
was  my  opinion,  I  did  not  state  it  to  the  jury,  but  referred  them  to  the 
facts  which  had  led  my  mind  to  that  conclusion. 

They  were  also  told,  that  to  entitle  the  plaintiff's  to  recover  on  the 
money  counts,  it  was  necessary  that  they  should  be  satisfied  that  the 
plaintiffs  bought  the  cotton  for  the  defendant,  that  they  were  bound  to 
pay  for  it,  and  that  they  bad  paid  money  before  suit  brought.  They 
were  told  that  the  four  thousand  dollars,  paid  to  Martin  &  Walter,  was 
such  a  payment  as  would,  to  that  extent,  entitle  the  plaintiffs  to  recover, 
if  it  was  true  that  they  bought  the  cotton  for  the  defendant,  and  were 
:i:-in'7-i  bouud  to  pay  *for  it.  I  said  to  them,  in  this  connection  that  for 
-^  the  money  advanced  by  Trapraan,  they  were  liable,  as  the  parties 
procuring  it,  and  if  the  cotton  did  not  sell  for  enough  to  reimburse  him, 
they  must  make  it  good  ;  and  hence,  that  whether  they  paid  that  sum 
out  of  the  money  advanced  by  Trapman,  or  out  of  their  own  funds,  was 
perfectly  immaterial.     For  it  was  tlieir  money  in  either  point  of  view. 

The  jury  found  for  the  plaintiffs  four  thousand  dollars,  and  the  defend- 
ant ajjpeals,  on  the  annexed  grounds  : 

1.  Because  his  Honor  erred  in  charging  the  jury  that  Robertson  &  Gilfillin 
were  liable  to  Trapman  for  the  ultimate  refunding  the  amount  advanced  by  him, 
whereas,  in  fact,  they  were  only  agents  of  Shannon,  and  having  fully  disclosed 
their  principal,  were  not  personally  bound,  unless  they  made  some  new  contract 
not  connected  with  Shannon. 

2.  Because  he  stated  to  the  jury,  that  it  was  immaterial  whether  the  money 
paid  to  Waller  was  plaintiff's  money,  or  had  been  advanced  by  Trapman,  in 
anticipation  of  his  advance  of  three-fourths  of  the  purchase. 

3.  Because  the  Court  expres.sly  charged,  that  the  special  counts  were 
unnece.s.^ary,  as  the  plaintiff  must  recover,  if  at  all,  on  the  other  counts. 
Wherea.s,  it  is  contended,  that  the  counts  for  refusing  to  complete  the  contract, 
are  tlie  only  ones  supported  by  the  evidence. 

■I  I'.ecunse  tlie  verthct  is  not  supportinl  by  the  evidence,  and  was  arbitrary, 
as  dofenrhmt,  if  liable  at  all,  was  liable  for  the  whole,  and  by  necessary  implica- 
tion, proves  tiiat  the  plaintiffs  did  not  make  out  a  case  entitling  them  to 
recover  at  all. 

5.  Because  the  true  cause  of  action  was  the  refusal  by  defendant  to  complete 
the  alleged  contract,  after  which  the  agency  of  plaintiffs  terminated,  and  they 
were  only  entitled,  if  at  all,  to  damages  for  the  refusal  to  pay  the  cash  i.art  of 
the  purchase. 

A.  a.  AJa'jrath,  for  the  motion,  said— Tlie  plaintiffs  cannot  recover,  either  upon 


'\61] 


ROBEETSON    &    GILFILLIN    VS.    SHANNON.  Ill 


the  counts  for  goods  sold,  the  money  counts,  or  the  special  counts.  They  are  not 
vendors.  Shannon  is  not  a  purchaser.  The  statute  of  frauds  is  in  the  way.  The 
plaintiffs  cannot  prove  a  contract,  as  is  required  by  its  terms.  There  is  no  pre- 
tence that  there  was  an  earnest  paid,,  "•'■nor  is  there  evidence  of  a  memorandum.  ^^,  ,, 
The  question  then  is,  whether  there  was  a  delivery  to  Shannon.  Delivery  '- 
under  the  statute  must  be  such  as  to  make  the  vendee  the  owner ;  to  give  hiui 
power  to  control  the  property.     1  Coinyn  on  Con.  91. 

There  is  no  evidence  of  such  delivery  here.  Where  is  the  evidence  of  Shannon's 
right?  He  never  could  control  this  property.  It  never  was  in  his  possession. 
Suppose  the  cotton  had  arrived  in  Liverpool,  Shannon  could  not  have  sup]3orted 
an  action  against  the  captain  or  owner  for  the  possession,  or  even  for  the 
damage,  if  any  had  been  sustained.  He  had  neither  bill  of  lading,  nor  any  other 
evidence.  To  presume  a  delivery  in  this  case  is  within  all  the  mischief  laid  down 
in  Cooper  vs.  Elston,  (7  T.  R.  14.)  Mclntyre  never  was  his  agent,  nor  were  Coleman 
&  Stotleporth.  These  all  represented  Robertson  &  Gillillin,  not  Shannon.  Not 
one  of  these  parties  have  ever  recognized  Shannon  as  their  principal.  How  then 
can  it  be  said  the  delivery  to  them  was  a  delivery  to  Shannon?  Nor  can  the 
verdict  be  sustained  under  the  money  count.  There  is  no  evidence  of  money  paid 
at  his  request.  This  is  important.  This  may  be  implied,  but  not  so  in  this  case. 
No  cii'cumstance  exists  here  to  jjresume  or  imply  this  request.  Even  the  $4000  is 
not  money  paid  on  request.  There  is  no  case  where  the  count  for  money  paid  can 
be  supported,  where  the  party  who  sues  for  the  money  retains  also  the  goods  for 
which  he  claims  to  have  paid  money.  Robertson  &  Gilfillin  kept  the  goods  and 
the  money.  The  proper  evidence  of  payment  of  money  in  this  case,  would  be  the 
payment  of  money,  and  transferring  the  property  to  Shannon.  But  so  long  as  they 
kept  the  cotton  and  refused  to  deliver,  they  could  not  sue  for  money  paid.  And 
moreover,  to  make  Shannon  chargeable,  under  this  count,  it  must  appear  that  the 
money  was  paid  under  a  certain  contract,  the  terms  of  which  have  been  performed 
by  them.  Now,  the  question  is,  whether  these  parties  have  not  violated  their 
contract ;  and  they  have  not  shown  this,  which  is  the  point  in  issue. 

If  the  plaintiifs  cannot  recover  upon  the  general  counts,  can  they  recover  on  the 
special  counts  ?  The  2nd  and  3d  special  counts  allege  delivery,  which  we  contend 
is  not  proved,  and  therefore  they  must  fail.  The  first  Sf)ecial  count  alleges  only 
the  purchasing  of  cotton  at  the  request  of  Shannon,  *and  his  promise  to  pay.  p^,  .„ 
But,  where  is  the  evidence  of  this  ?  There  has  been  no  evidence  whatever  of  '■ 
the  whole  contract.  The  consent  of  both  parties  to  the  contract  is  necessary  to  make 
it  binding.  And  the  conduct  of  the  parties  at  the  time  when  the  dispute  arose,  proves 
that  this  was  not  the  contract ;  it  was  not  the  understanding  of  the  parties ;  and 
this  is  the  essential  feature  in  every  contract.  All  inferences  are  here  excluded, 
because  the  conduct  of  the  parties  is  so  x>lain  that  it  makes  positive  evidence.  So 
that  there  is  no  evidence  whatever  to  support  even  the  special  counts. 

But  the  rights  of  the  parties  result  from  their  legal  positions  at  the  time  of  the 
quarrel  between  the  plaintifi's  and  the  defendant.  If  they  were  principal  and  accent 
when  Shannon  quarrelled  with  them,  this  was  repudiating  their  agency.  It  was 
there  terminated.  Their  agency  then  ceased.  But  although  this  is  so,  still  they 
continued  to  conduct  themselves  as  if  they  were  authorized  agents.  So  far  then 
as  regards  these  parties  when  they  quarrelled,  Robertson  &  GilfiUin  should  have 
at  once  terminated  their  agency.  They  could  not  be  agents  against  the  consent  of 
Shannon.  Had  they  sold  the  cotton  in  Charleston  before  the  vessel  sailed,  there 
would  have  been  no  loss.  The  sales  of  cotton  here  would  have  more  than  paid  all 
losses  and  expenses.  This  was  the  prudent  course,  and  this  is  the  course  they 
were  bound  to  pursue,  under  the  rule  that  the  agent  must  act  most  to  the  benefit 
of  the  principal.  All  the  loss  here  was  caused  by  the  misconduct  of  Robertson  & 
Gilfillin,  and  this  they  cannot  claim  against  Shannon. 

Yeadon,  contra.  Counsel  have  brought  the  prisoner  before  the  Court,  to  excite 
the  sympaihies  of  your  Honors.  The  defendant  is  suffering  by  his  own  folly 
and  faithlessness.  The  condition  of  the  plaintiffs  is  equally  deserving  of  sympa- 
thy. Defendant  was  not  contented  with  buying  what  his  money  would  afford,  he 
goes  to  plaintiffs  and  buys,  through  them,  thousands  more. 

All  advancements  were  obtained  through  the  plamtiffs.     Plaintiffs  acted  in  good 


11-3  Cn.ARLESTOX,  FEBRUARY,  1841.       VOL.  I.  [*169 

faith  tbrougliout  the  whole  transaction.  Plaintiffs  acted  according  to  the  usages 
^,f.^,  of  merchants.  Mr.  *Y.  contended  that  the  verdict  was  properly -rendered 
-'  on  the  counts  for  goods  sold  and  delivered. 

If  the  money  had  never  been  paid  by  plaintifls,  it  cannot  be  doubted  but  that 
the  original  sellers  might  have  maintained  this  action  for  the  cotton.  Plaintiffs 
have  placed  themselves  in  the  shoes  of  the  original  sellers.  1  Chitt^-'s  Plead.  5  ; 
2  Liv.  on  Agency,  120  ;  2  Esp.  N.  P.  493  ;  Cited  also,  opinion  of  the  Court  in  the 
former  case.  The  Coui-t  decided  that  the  money  counts  could  not  be  supported, 
but  that  they  might  recover  on  the  counts  for  goods  sold  and  delivered. 

The  Court  of  Appeals  laid  down  the  principle  on  wliich  the  case  was  to  be  de- 
cided, and  the  Circuit  Court  so  instructed  the  jury,  and  they  found  accordingly. 

Plaintiffs  are  charged  in  the  books  of  the  first  sellers  as  the  principals.  Plaintiffs 
credited  the  defendant,  and  became  thereby  vendors.  Was  there  a  delivery  ? 
Signing  the  bill  of  lading  was  a  delivery,  and  enough  to  divest  plaintiffs  of  all 
right,  except  the  right  of  stoppage  of  the  goods  in  transitu.  2  Term.  Rep.  71 ;  also 
2  Liv.  Ag.  110.  Under  the  usages  of  trade,  defendant  could  not  have  the  bill  of 
lading,    "l  H.  Blackstone,  3t;4. 

By  the  usages  of  trade,  the  moment  the  bill  of  lading  is  signed  by  the  captain, 
the  right  of  property  vests  in  the  consignees  in  Liverpool,  and  tliey  could  maintain 
an  action  against  the  carrier  for  loss  or  damage. 

The  delivery  to  captain  Mclntire,  was  a  sufficient  delivery  ;  and  I  contend  that 
the  captain  was  the  agent,  and  so  soon  as  this  delivery  took  place,  plaintiffs  were 
divested  of  any  further  control  over  the  cotton.  Defendant's  act  was  indispensable 
to  again  take  possession  of  the  cotton.  It  was  shipped  for  the  benefit  of  defend- 
ant, and  he  could  maintain  trespass  for  the  cotton,  if  the  plaintiffs  had  taken 
possession. 

Plaintiffs  are  entitled  to  sustain  the  verdict  upon  the  counts  for  money  j^aid,  laid 
out  and  expended.  Plaintilfs  paid  $4000  for  defendant,  at  his  special  instance  and 
request,  and  this  was  sufficient  to  sujiport  the  counts  for  money  paid,  laid  out  and 
expended. 

Mr.  Memminger,  on  the  same  side — said,  none  of  the  parties  concerned  in  the 
^,  --■  -,  transaction  could  have  disposed  of  this  *cotton  but  defendant.  Defendant 
-'  was  only  bound  to  discharge  the  pre-existing  liens.  He  had  the  resulting 
interest.     The  other  parties  had  no  right  in  law. 

When  the  contract  of  agency  was  detennined  by  defendant's  repudiating  the 
contract,  defendant  was  bound  to  put  the  plaintiffs  in  statu,  quo — place  them  just 
as  he  found  them,  by  refmiding  the  amount  advanced  by  them  for  him.  Cited  11 
Johnson,  439  ;  7  Cranch,  500.     Ayent  against  principal. 

Hunt,  in  reply,  contended  that  there  was  a  difference  between  a  broker  and  a 
factor.     Cited  2  Barn.  &  Aid.  142,  193  ;  1  H.  Blac.  360,  3G5  ;  15  E.  62. 

Curia,  per  O'Neall,  J.  This  case  has  been  twice  tried,  and,  in  my 
judgment,  is  about  as  plain  a  case  as  ever  was  presented  to  a  Court  and 
jury.  It  is  susceptible  of  two  views  :  1st,  either  the  plaintiffs  bought  the 
cotton  for,  and  delivered  it  to  Shannon,  thus  making  a  sale  of  it  by  them 
to  him  ;  or,  2d,  they  bought  it  for  hira  and  paid  for  it  in  the  whole  or  in 
part.  In  either  of  these  points  of  view,  it  is  a  case  of  facts  merely  ;  and 
the  only  iiujuiry  would  be,  do  the  facts  justity  either  of  them  ?  That  the 
plaintiirs  bought  the  cotton  for  Shannon,  and  at  his  request,  is  unques- 
tionable. It  was  proved  by  Walter  and  Cotchett,  from  whom  it  was 
bought.  Was  it  delivered  to  him  ?  About  that,  it  seems  to  me,  there  can 
be  as  little  question.  He  designated  the  vessel  in  which  it  was  to  go, 
(the  Ijarfjuc  Josepha,)  in  which  he  had  taken  his  own  passage  ;  the 
captain  of  the  Josepha  said  that  the  plaintifls  shipped  the  cotton  for  the 
defendant ;.  he,  the  defendant,  was  along  side,  when  it  was  going  on 
board ;  and  when  one  of  the  plaintiffs  said  to  him  that  another  person 


*171]  ROBERTSON    &   GILFILLIN    VS.    ^HANNON.  113 

was  willing  to  take  one  hundred  bags,  he  replied,  "  he  would  try  the 
whole  for  luck."  He  did  not  object  until  the  whole  cotton  was  on  Ijoard, 
and  then  indeed  he  refused  to  comply  with  his  contract. 

If  the 56  facts  do  not  prove  a  delivery,  then  I  confess  I  cannot  say 
what  could  prove  it.  But  here  it  is  said  the  defendant  did  right  in 
refusing  to  comply  with  his  contract,  inasmuch  as  by  the  arrangements 
made  by  the  plaintiffs,  he  had  not  the  control  of  the  cotton.  This  is 
a  mere  specious  presentation  of  a  defence,  which  cannot  be  sustained. 
The  defendant  had  not  quite  money  enough  to  buy  one-fourth  of  the 
*cotton  which  he  desired.  To  obtain  the  quantity  bought,  an  r^-itj^f 
advance  had  to  be  procured  by  the  plaintiffs.  This  was  stated  L 
to  him  ;  and  after  the  finding  of  the  jury,  we  must  take  it  he  fully  under- 
stood it.  According  to  the  course  of  trade,  fully  proved  in  both  trials, 
the  cotton  is  shipped  in  the  name  of  the  person  making  the  shipment  in 
fact,  and  is  consigned  to  the  firm  in  England  who  are  the  correspondents 
of  the  party  here  making  the  advance. 

The  shipment  thus  made  is  to  paj',  first,  the  advance  ;  second,  the 
charges  of  the  shippers,  if  any  ;  and  the  balance  to  the  real  owner.  His 
name  does  not  appear  in  the  bill  of  lading,  but  in  the  invoice  accom- 
panying the  cargo. 

In  this  way,  the  rights  of  all  parties  are  secured.  All  these  things 
were  done  on  this  occasion.  There  is,  therefore,  nothing  in  this  matter 
which  can  discharge  the  defendant.  It  is,  however  urged,  that  when  the 
defendant  refused  to  comply,  the  plaintiffs  ought  to  have  sold  the  cargo 
here,  and  thus  a  loss  would  have  been  prevented.  It  would  be  enough 
here  to  say.  they  had  discharged  their  duty,  and  the  cotton  was  at  the 
defendant's  risk.  They  had  procured  or  contracted  for  the  advance 
$12,470;  they  had  bought  the  cotton  for,  and  delivered  it  to  him. 
Their  power  over  it,  excei)t  to  send  it  forward  according  to  the  course 
of  trade  was  ended.  The  defendant,  if  he  had  thought  proper,  could 
have  had  the  entire  control,  by  paying  the  whole  price  of  the  cotton  ;  or 
if  he  had  paid  the  difference  between  the  advance  and  the  price,  he  could 
have  gone  on  with  the  cotton  ;  and  in  Liverpool,  he  would  have  received 
the  proceeds,  after  paying  the  advance,  the  freight,  and  the  shipper's 
charges.  That  he  did  neither  of  these,  is  the  defendant's  misfortune ;  it 
is  that  which  deprives  him  of  liberty,  and  which  will  deprive  him  of  the 
earnings  of  his  life.  Looking  at  the  case  as  a  sale  by  the  plaintiffs  to 
the  defendant,  they  onglit  to  have  had  a  verdict  for  the  wliole  price  of 
the  cotton,  $16,294  ;  but  the  jury  for  the  present  might  suppose  that  the 
cotton  in  Liverpool  did  not  quite  cover  the  advance,  (for  Mr.  Worther- 
spoon  said  the  sales  were  not  equal  to  it,)  and  deduct  on  that  account 
$12,294,  which  would  leave  a  balance  of  $4,000  the  amount  found  by 
their  verdict  This  would  still  leave  the  defendant  liable  for  any  sum 
which  the  plaintiffs  may  be  compelled  to  pay  to  Trapman  on  account  of 
the  advance,  after  deducting  from  it  the  *nett  sales  in  Liverpool.  r*i^q 
But  concede  that  the  jury  erred,  and  that  the  plaintiffs  were  L 
entitled  to  receive  8l6,'i94,  and  they  are  content  with  the  verdict  of 
$4000,  surely  the  defendant  ought  not  to  complain.  Consider  the  case, 
however  in  the  other  point  of  view.  The  plaintiffs  were  mere  brokers  ; 
they  bought  the  cotton  for  the  defendant  at  his  request.  The  persons 
selling  it  w^ould  not  sell  to  Shannon  ;  they  sold  to  the  plaintiffs,  and 
Vol.  I.— 9 


114  CHARLESTON,  FEBRUARY,  1841.      VOL.  I.  [*173 

charged  them  with  it.  They  had  no  claim  whatever  on  the  defendant. 
Here,  surely  it  cannot  be  denied,  that  money  paid  by  them,  on  this 
account,  was  money  paid,  laid  out  and  expended  for  the  defendant,  and 
at  his  request.  For  the  obligation  was  incurred  for  him,  and  they  were 
legally  liable  to  pay  for  him.  It  is  the  common  case  of  two  persons 
going  into  a  store,  one  of  them  wishes  goods,  the  merchant  will  not  sell 
to  him  ;  the  third  person  says,  let  him  have  them  on  ray  account ;  it  is 
done,  and  they  are  charged  to  the  third  person,  and  his  liability  to  pay 
is  beyond  all  question,  and  certainly  when  he  does  pay,  he  can  compel 
the  party  to  whom  the  goods  were  delivered  to  pay  him.  Indeed,  I 
think,  notwithstanding  the  former  opinion  in  this  case,  that  when  it  was 
shown  here,  that  the  plaintiffs  bought  the  cotton  for  the  defendant,  that 
the  venders  refused  to  credit  him,  and  charged  it  to  them,  that  this  was 
as  much  a  payment  for  bis  use,  as  if  it  had  been  made  in  gold  or  silver. 
But  that  is  not  necessary  for  this  case,  and  I  only  state  the  position  that 
that  opinion  may  not  even  impliedly  have  my  sanction.  To  pay  for  the 
cotton,  the  plaintiffs  applied  to  Trapman  for  an  advance,  and  got 
$12,470.  This  did  not  pay  for  the  cotton  by  $4000.  They  had  pre- 
viously paid  this  last  sum.  If  even  the  12,470,  could  in  any  shape  be 
regarded  as  Shannon's,  they  had  the  right  to  say  that  sum  is  to  be 
applied  to  the  balance  still  due  for  the  cotton,  leaving  the  $4000  previously 
paid  l)y  tliem  unsatisfied,  and  for  it  they  were  entitled  to  a  verdict.  But 
in  point  of  fact,  the  money  got  from  Trapman  was  a  loan  to  them  secured 
by  their  principal's  cotton.  For  Wotherspoon,  Trapman's  agent,  said  I  did 
not  know  Shannon  in  the  transaction,  further  than  that  the  plaintiffs  were 
buying  the  cotton  for  him,  and  would  pledge  it  for  the  repayment  of  the 
advance.  This,  by  the  usage  of  trade,  they  had  a  right  to  do.  If  the 
principal's  cotton  paid  the  advance,  it  was  very  well ;  but  if  not.  the 
*174T  parties  procuring  it  must,  as  a  matter  of  course,  pay  any  *deficit. 
-^  Considering  the  case  in  this  way,  it  is  perfectly  immaterial 
whether  the  money  paid  hj  them  was  from  their  own  or  borrowed  funds  ; 
still  it  was  paid  by  them,  and  they  are  entitled  to  recover. 
The  motion  is  dismissed. 

Butler,  Evans  and  Earle,  J  J.,  concurred.     Gantt,  J.,  dissented. 


Edward  Barnwell  vs.  John  Magrath, 

Tlio  erection  of  a  gate  acrcss  a  way,  claimed  by  the  plaintiff,  which  is  opened  and 
sliut  at  ])lcaKure  by  all  who  pass,  is  not  such  an  obstruction  as  would  have  the 
effect  to  (!xtinf;uish  tlie  plaintiff's  right,  or  of  barring  him  of  his  remedy,  how- 
ever long  it  may  have  been  erected. 

Before  O'Neall,  J.,  at  Charleston,  May  Terra,  1840. 

This  was  an  action  on  the  ca.se,  for  obstructing  the  plaintiff's  right  of 
way,  leading  from  his  farm  along  the  line  of  the  defendant  to  the  Ship 
Yard  creek. 

In  1794,  Col.  Shubrick,  who  was  then  the  owner  of  most  of  the  land 


*174J  BARNWELL   VS.    MAGRATH.  115 

and  lots,  whicli  he  had  laid  out  as  tlio  village  ofBelviderc,  and  John  Ed- 
wards, Henry  Grant,  and  Thomas  Simons,  who  then  owned  the  three  lots 
now  composing  the  defendant's  farm,  agreed  to  shut  up  all  the  streets 
which  had  been  laid  out,  and  to  open  the  street,  or  road,  leading  from 
the  pul)lic  road  to  the  Ship  Yard  creek.  This  road  is  designated  in  all 
the  deeds  by  which  the  defendant's  and  the  plaintiff's  land  was  conveyed. 
In  the  deed  to  the  defendant,  the  road  is  referred  to  as  his  boundary,  and 
called  a  public  road.  From  the  Charleston  road  to  the  boundary  of  the 
defendant's  land,  there  is  no  doubt  the  road  is  public,  (although  it  was 
not  *worked  by  the  commissioners  of  cross  roads,)  both  from  tlie  rH-itrc 
original  dedication,  and  the  subsequent  public  use  of  it.  But  L 
from  the  boundary  of  the  defendant's  land  to  the  Ship  Yard  creek,  the 
way  is  private.  It  was  used  by  Edwards,  Grant  and  Simons,  and  those 
claiming  under  them,  and  by  Mr.  Johnson  and  Mr.  Glenn,  under  whom 
the  plaintiff  claimed.  As  far  back  as  the  witnesses  could  remember,  more 
than  forty  years  ago,  a  gate  was  erected,  and  has  ever  since  stood  across 
the  road.  Mr  Johnson,  one  of  the  former  owners  of  the  plaintiff's  land, 
used  the  road  from  1821  to  1825  ;  but  at  and  during  that  time,  he  had 
the  use  of  the  defendant's  farm,  by  the  consent  of  Mr.  Fitzsiraons,  its 
then  owner.  Mr.  Glenn,  who  succeeded  Mr,  Johnson,  used  it  for  two  or 
three  years,  as  a  matter  of  right ;  his  right  to  so  use  it  was  then  denied, 
and  then  he  applied  to,  and  obtained  permission  from  the  defendant,  to 
use  it.  In  1829,  the  defendant  put  up  the  gate  complained  of  as  an 
obstruction,  at  the  place  where  it  had  formerly  stood.  This  gate,  and 
the  other  which  preceded  it,  were  fastened  with  a  latch.  It  is  a  great 
convenience  to  the  plaintiff  to  pass  through  the  gate  to  the  defendant's 
landing  on  Ship  Yard  creek.  He  was  allowed  to  pass  until  he  claimed 
it  as  a  matter  of  right ;  the  gate  was  then  shut  and  locked.  This  was 
shortly  before  suit. 

The  case  was  submitted  to  the  jury,  and  they  were  told  that  there  was 
no  doubt  about  the  original  dedication  of  the  road  to  the  public  ;  but 
the  public  had  not  used  that  part  from  the  defendant's  gate  to  the  Ship 
Yard  creek  That  portion  of  it  was  made  private  by  the  erection  of  the 
gate,  and  the  use  of  it  exclusively  by  particular  persons.  The  i)laintitf 
could  not  claim  the  way  by  use.  For  Johnson's  use  was  in  the  defend- 
ant's right  as  well  as  his  ;  Glenn's  use  was  for  so  short  a  period  that  no 
right  could  thence  arise.  That  the  plaintiff  must  stand  upon  the  defend- 
ant's deed  as  a  concession  of  the  way  in  1828  ;  but  in  '29,  the  defendant's 
gate  was  erected,  and  if  the  jury  believed  that  that  was  an  approi)riation 
by  the  defendant  of  the  way  to  himself,  and  a  denial  of  the  right  of 
others  to  pass  over  it,  then,  I  thought,  and  so  said  to  the  jury,  that 
after  four  years  from  the  erection  of  the  gate,  the  right  of  way  was  gone. 
For  after  that  time  the  remedy  by  action  was  gone.  The  jury  found  for 
the  plaintiff' the  way,  with  a  gateJa  it,  and  $12.8i  damages. 

*The  defendant  appeals,  r*i7fi 

1.  Because  there  was  no  evidence  to  establish  either  a  public  or  private  ■- 
right  of  way.     That  as  to  the  public  right,  the  evidence  proved  that  there  was 
DO  dedication  to  the  public  ;  and  as  to  the  private  right,  there  was  no  evidence 
of  grant,  prescription,  or  necessity. 

2.  That  the  evidence  was  clear,  of  a  continued  obstruction  for  the  period  of 


116  CHARLESTON,  FEBRUARY,  1841.      VOL.  I.  [*176 

forty  years,   or  upwards.     And  there  was  no   proof  of  use  by  any  person 
adversely  to  the  parties  through  whom  the  defendant  claims. 

3.  That  the  plaintiff"  was  barred  from  recovery  by  lapse  of  time. 

4.  That  the  verdict  was,  in  other  respects,  against  law  and  evidence. 

A.  G.  Magrath,  for  the  motion,  said:  A  new  trial  must  be  granted,  as  there  is 
nothing  upon  which  the  verdict  can  rest.  There  is  no  right  of  way,  neither  public 
nor  private.  It  is  not  a  private  way.  There  is  no  grant  of  it  as  such.  If  the  grant 
or  deed  between  Shubrick  and  the  other  land  holders,  occupants  of  the  property 
now  owned  by  the  defendant  established  anything,  it  establishes  a  public  road. 
There  is  nothing  in  the  deed  to  support  the  claim  for  a  private  way.  Nor  can  the 
parties  claim  the  right  by  prescription.  Prescription  for  a  private  way,  requires, 
1st,  private  and  exclusive  right:  2d,  twenty  years  adverse  possession.  (1  Bail.  R. 
342.)  It  supplies  a  grant,  and  is  the  effect  of  use  and  time,  (2  Thomas'  Coke, 
233.)  There  is  no  evidence  of  either  of  these  requisites.  Is  the  road  public  ?  It 
is  claimed  by  the  deed ;  but  the  deed  cannot  make  the  road.  The  use  consecrates 
the  right  proposed  by  the  deed  to  be  given,  (2  Bay,  287.)  Besides  the  intention 
to  give,  there  must  be  evidence  of  acceptance.  A  dedication  to  the  public  must 
be  proved.  Dedication  is  a  thing  distinct  from  the  deed.  It  is  additional.  Here, 
there  is  no  evidence  of  dedication.  The  road  never  was  used.  From  the  earliest 
period  the  obstruction  was  there.  This,  of  itself,  repels  the  presumption  of  dedi- 
cation. Any  circumstance  will  rtjbut  it.  As  erecting  a  bar,  Roberts  vs.  Kan, 
(1  Campb.  262;  3  Saunders,  175,  note  E.)  So  far  from  there  being  ground  for 
presuming  dedication,  the  presumptions  are  quite  the  contrary. 
^-.,._  *What  evidence  is  there,  that  any  act  was  ever  done  under  the  deed,  to 
-'  make  this  a  road  ?  None.  The  earliest  evidence  is  that  which  rebuts  the  idea 
of  a  road.  Lord  Kenyon  had  said  in  The  Rei/Ii/  Charitij  vs.  Merriu-eather,  (11  East, 
375,)  that  the  use  for  six  years  proves  the  dedication.    There  is  no  such  proof  here. 

Where  has  Barnwell  attempted  to  show  the  use  of  the  road  by  those  through 
whom  he  claims  ?  All  who  preceded  him  used  the  road  not  as  a  right,  but  as  a 
favor.     Such  a  use  never  gives  right.     The  use  must  be  adverse. 

But,  even  admitting  a  right  originally,  has  it  not  been  internipted  or  abandoned 
more  than  twenty  years  ?  If  the  right  ever  was  in  him,  it  is  gone.  (15  Mass.  R. 
125;  1  B.  &  P.  400;  Yard  vs.  Ford,  3  Saunders'  R.  174,  note  2.)  Non-user, 
coui^led  with  the  assertion  of  a  right  to  intercept  the  user,  for  more  than  twenty 
years,  will  extinguish  the  claim.  As  to  the  statute  of  limitations,  four  years  have 
elapsed  since  the  obstruction,  which  is  the  cause  of  action.  The  plaintiff  is  con- 
sequently barred  of  his  remedy.  As  far  back  as  1829,  the  defendant  asserted  his 
exclusive  riglit  against  the  then  owner  of  Barnwell's  land,  and  forty  years  and 
more  have  elapsed  since  the  obstruction.  No  evidence  that  at  any  time  the 
obstruction  was  not  there.  This  case  is  then  clearly  within  the  mischief  of  the 
statute,  as  well  as  within  its  letter  and  equity. 

But,  it  is  said  tin;  deed  of  the  defendant  calls  for  this  road  as  a  boundary.  Does 
this  amount  to  more  than  that  in  1829  the  defendant  agreed  to  open  the  road? 
But  lie  did  not  open.  IIo  refused  to  dedicate  ;  of  course  no  right  vested  in  any 
one.  (2  Bay,  287;  1  Campb.  2U2.) 

McCready  and  Maxyclc,  contra,  said  that  a  rii^ht  of  way  was  a  hereditament.  Cited, 
2  Brev.  Dig.  21,  22;  3  Kent  359  ;  2  Ev.  Po.  13(1. 

Crtria,  per  Eari-E.  The  vonlict  of  Ihe  jury  has  established,  that  the 
plaint  if!"  had  a  riglit  to  the  i)nvate  way  which  he  claimed.  It  is  not  mate- 
ria! to  the  determination  of  the  question,  made  on  the  motion  for  a  new 
trial,  to  iiif|inre  how  the  ri<rht  was  first  acquired.  The  agreement  between 
Col.  Shubrick,  under  whom  plaintiff  derives  title,  and  the  three  persons 
♦1781  ".'"'  ^'"'"  '-'^^'"^*^  ^''^  premises  now  held  by  the  defendant,  first  *gave 
rise  to  the  way  in  question ;  and  is  supposed  to  have  been  a  dedi- 
cation of  it  to  the  public.  But  as  the  attempt  to  build  up  the  village  of 
Belvidere  proved  abortive,  there  was  no  public  to  acquire  the  right  of 


178] 


BARNWELL   VS.   MAGRATH.  117 


way  there,  by  actual  use,  which  was  confined  to  the  covenanters  them- 
selves, and  those  claiming  under  them.  The  use  was  strictly  private,  and 
seems  to  have  been  continuous  for  more  than  twenty  years.  The  land 
on  which  the  way  lies,  belonged  to  Shubrick.  It  is  not  tlie  case  of  a 
private  way  over  another's  land,  and  of  an  obstruction  by  the  owner. 
Shubrick  dedicated  the  way,  or  granted  the  right  to  use  it,  to  Edwards, 
Grant  and  Simons,  from  whom  the  defendant  derived  title,  and  to  all 
others,  as  the  street  or  road  of  Belvidere.  The  plaintiff  derives  title  from 
Shubrick,  to  a  portion  of  the  same  lands,  composing  Belvidere,  to  which 
the  way  was  appurtenant,  and  may  be  said,  therefore  to  have  the  right  of 
way,  by  express  grant,  or  by  necessary  implication.  We  cannot  suppose 
the  absurdity  in  a  legal  point  of  view,  that  Shubrick,  by  granting  to  others 
a  right  of  way,  should  deprive  himself,  and  those  holding  under  him,  of 
the  right  to  use  the  way. 

The  defendant's  title  deeds  and  accompanying  plats  demonstrate,  not 
only  that  the  way  is  not  over  his  soil,  but  that  the  existence  of  it  has 
been  admitted  by  those  under  whom  he  claims,  as  well  as  by  himself. 
The  Court  is  therefore  satisfied  there  is  abundant  evidence  to  sustain  the 
plaintiff's  right  of  way. 

This  right,  however,  is  supposed  to  have  been  extinguished  by  a  long 
continued  obstruction,  and  as  the  defendant's  gate  was  put  up  on  the  way 
in  1829,  which  was  an  appropriation  of  it  to  himself,  and  a  denial  of  a 
right  to  others  to  pass  over  it,  that  the  plaintiff's  right  of  action  was  like- 
wise gone.  No  doubt  a  right  of  way  may  be  extinguished  in  several 
modes;  and  especially  the  erection  of  a  permanent  obstruction,  which 
necessarily  hinders  the  exercise  of  the  right,  would  operate  to  annihilate 
it. (a)  How  long  such  an  obstruction  must  be  permitted  to  exist,  in 
order  to  raise  a  presumption  that  will  overthrow  the  right,  or  lose  the 
remedy  by  action,  we  need  not  consider.  The  only  question  on  this  part 
of  the  case  is,  whether  the  erection  of  a  gate  across  the  way,  which  is 
opened  and  shut  at  pleasure,  by  all  who  pass,  is  such  an  obstruction  as 
would  have  the  effect  to  extinguish  the  right  of  way;  and  we  *are  r^i^n 
clearly  of  opinion  that  it  is  not.  It  is  a  modification  of  the  right,  L 
which  may  be  prescribed ;  but  it  is  not  an  obstruction  that  prevents  or 
hinders  the  use  of  the  way  ;  and,  therefore,  however  long  continued,  would 
not  have  the  effect  of  extinguishing  the  right,  or  of  barring  the  remedy. 

In  Capers  vs.  Wilson,(f^)  Mr.  Justice  Nott  expi*esses  a  doubt  whether 
a  gate  of  that  kind  would  be  such  an  obstruction  as  would  give  a  right 
of  action.  We  think,  therefore,  that  the  verdict  is  right,  and  the  motion 
to  set  it  aside  is  refused. 

The  whole  court  concurred. 

See  State  vs.  Peters,  7  Rich.  393.     An. 

(«)  See  3  Strob.  22G ;   6  Eicli,  298.     An.  (6)  3  McC.  174.     An. 


118  CHARLESTON,  FEBRUARY,  1841.       VOL.  I.  [*179 


M.  Thomas  vs.  J.  D.  Yates. 

Where  a  Sheriff  has  collected  money  under  execution  in  favor  of  the  plaintiff,  and 
before  a  demand  is  made  on  him  b}^  plaintiff  to  pay  over  the  nioney,  he  receives 
written  notice  from  the  attorney  of  certain  attaching  creditors  not  to  pay  over, 
but  to  retain  the  sum  collected  in  his  hands — that  they  intend  to  file  a  suggestion 
to  set  aside  the  plaintiff's  judgment  and  execution,  as  fraudulent  and  void. 
Held,  that  the  Sheriff  was  legally  justified  in  retaining  the  money. 

If  there  are  are  conflicting  claims  to  money  collected  by  a  Sheriff,  and  he  receives- 
notice  and  acts  fairly  and  bona  fide  in  the  matter — does  not  use  the  money 
himself,  but  deposits  it  in  bank  to  await  the  ultimate  decision  of  the  Court — he 
does  not  subject  himself  to  the  penalty  of  the  Act  of  1796. 

The  Act  of  1796,  (5  Stat.  284,)  is  somewhat  penal,  and  should  be  construed  with 
strictness  in  favor  of  the  party  to  be  affected  by  it. 

A  Sheriff  is  bound  to  show,  where  he  is  sued  under  the  Act,  that  he  has  acted 
fairlv  and  in  good  faith,  and  that  the  money  has  not  been  detained  for  false 
purposes. 

Before  Earle,  J.,  at  Charleston,  May  Terra,  1839. 

Debt  for  the  penalty  of  50  per  cent,  on  the  sum  of  $2,238  18  cents, 
collected  by  the  defendant,  on  an  execution  in  favor  of  the  plainiiff,  and 
not  paid  over  within  ten  days  after  demand.  The  execution  of  the  plain- 
*-|o/^-i  tift"  against  John  Aitkin,  *was  lodged  31st  January,  1837.  The 
■^  money  was  made  on  6th  February,  1837.  Demand,  in  writing,  by 
the  plaintiff,  on  the  14th  March,  1837,  and  again,  on  25th  October,  the 
same  year.  The  defendant  refused  to  pay  the  money.  Other  demands 
were  made  on  the  25th,  30th,  and  31st  October,  and  on  the  last  day  a 
bond  of  indemnity  was  tendered.  The  writ,  in  this  cause,  was  lodged 
the  same  day. 

The  defence  was,  that  the  sheriff  was  jnstified  in  withholding  the  money, 
in  consequence  of  certain  proceedings  at  law  and  in  equity.  A  notice,  in 
writing,  l)y  Bailey  &  Dawson,  attorneys  for  certain  persons,  was  served 
on  the  defendant,  on  7th  March,  1837,  directing  him  not  to  pay  the 
money  to  the  plaintiff,  but  to  retain  the  same  in  his  hands,  as  they 
intended  to  file  a  suggestion  of  fraud.  Writs  of  attachment,  at  the 
fiuit  of  several  persons,  among  them,  Hugh  Blair,  against  John  Aitkin, 
were  lodged  on  the  6lh  Feljruary,  1837,  the  sheriff  summoned  as  gar- 
nishee. On  the  10th  June,  1837,  there  was  an  order  obtained  for  leave 
to  tile  a  suggestion  of  fraud  on  the  plaintiff's  judgment.  The  suggestion 
was  filed  on  the  1st  January,  1838;  on  which  there  was  no  further  pro- 
ceedings. On  the  20th  March,  1837,  a  bill  was  filed  by  John  S.  Bird, 
against  Aitkin,  Thomas,  and  the  sheriff,  to  set  aside  the  plaintiff's  judg- 
ment, and  for  an  injunction  to  restrain  the  sheriff  from  paying  over  tlie 
money.  But  no  injunction  was  then  obtained,  or  a])plied"  for.  But  at 
January  term,  1  >;38,  a  decree  was  pronounced  by  Chancellor  Harper, 
vacating  the  judgment,  which,  on  api)eal,  was  reversed  in  February,  1839. 
On  3d  March,  1X38,  an  order  was  granted  by  the  Chancellor,  that  an 
injunction  issue  to  restrain  the  plaintiff  from  proceeding  at  law;  and 
directing  tliat  tlie  money  should  be  invested  by  consent  of  parties.  On 
loth  March,  1838,  it  was  paid  to  the  Master,  and  afterwards  paid  by  him 
to  the  plaintiff's  attorney,  l)y  order  of  the  Appeal  Court. 

On  8lh  January,  1838,  there  was  a  rule  on  the  sheriff,  to  show  cause 


*180] 


THOMAS    VS.    YATES.  119 


why  he  had  not  paid  the  money;  rule  made  absohite  on  the  13th  January, 
1838  ;  but  the  order  reversed  at  tlie  next  sittinp;  of  the  Appeal  Court. 
On  15th  January,  1838,  there  was  notice  of  the  filing  of  a  supplemental 
bill. 

I  thought  it  clear,  that  the  notice  by  Bailey  &  Dawson,  on  7th  March, 
could  not  protect  the  sheriff.  If  it  could,  a  mere  verbal  demand,  or 
assertion  of  right,  by  a  third  person,  *must  have  the  same  effect,  r^iq. 
The  order  for  leave  to  file  the  suggestion,  of  the  10th  June,  was  L 
not  accompanied,  as  usual,  by  order  restraining  the  sheriff  from  paying 
the  money.  And  although  a  bill  was  filed  by  a  person,  claiming  to  be 
interested,  on  20th  March,  1837,  to  set  aside  the  judgment,  and  for  an 
injunction;  yet  no  application  was  made  for  an  injunction,  and,  of  course, 
none  was  ordered,  until  3d  March,  1838.  But  the  sheriff's  liability  had 
been  incurred  long  before,  and  the  action  was  brought  31st  October, 
183T.  It  was  too  late  then  to  save  the  sheriff  from  the  consequence  of 
his  former  neglect.  The  jury  was  charged  according  to  these  views  ;  and 
under  the  instructions  of  the  Court,  they  found  for  the  plaintiff  half  the 
amount  which  he  was  entitled  to  receive  on  his  execution. 

It  was  objected,  that  the  judgment  was  not  produced  in  evidence;  I 
thought  that  unnecessary,  and  overruled  the  objection. 

The  defendant  moves  to  set  aside  the  verdict,  on  the  accompanying  grounds. 

1.  That  the  notice  of  the  intention  of  the  attaching  creditors  of  John  Aitken, 
to  file  a  suggestion  to  set  aside  plaintiff's  judgment  and  execution,  as  fraudulent 
and  void,  followed  up  by  the  actual  filing  of  such  suggftstion,  (such  notice 
having  been  served  on  the  sheriff  prior  to  plaintiff's  demand,)  legally  justified 
the  sheriff  in  retaining  the  money,  until  the  question  of  fraud  was  decided  ;  and 
his  Honor  erred  in  charging  the  contrary. 

2.  That  the  filing  of  the  bill  in  Equity,  within  ten  days  after  the  plaintiff's 
demand,  by  the  creditors  of  Aitken,  against  plaintiff  and  others,  to  set  aside 
j)laintiff's  judgment  against  Aitken,  as  fraudulent,  and  to  restrain  the  sheriff 
from  paying  over  the  money  to  plaintifi",  the  sheriff  having  been  made  a  party 
defendant  to  the  said  bill,  also  legally  justified  the  sheriS'  in  retaining  the  money 
until  the  question  of  fraud  was  decided  ;  and  his  Honor  erred  in  charging  the 
contrary. 

3.  That  the  lodging  of  the  attachment  of  the  attaching  creditors  of  Aitkin, 
with  the  sheriff,  while  the  goods  and  chattels  of  Aitken  were  in  possession  of 
the  sheriff,  and  were  yet  unsold,  by  virtue  of  the  levy  under  plaintiff's  execution, 
with  a  view  to  make  those  goods  and  chattels  liable  to  the  attachment,  also 
*justified  the  sheriff  in  retaining  the  money,  until  an  adjudication  of  the  r*-|Q.. 
rnatter.  '  L  ^^^ 

4.  That  the  statute  on  which  the  action  was  founded,  is  a  penal  statute, 
intended  only  to  apply  to  delinquent  sheriffs,  wilfully  or  corruptly  withholding 
money  from  plaintiff's  entitled  to  it,  and  ought  to  be  constructed  strictly;  and 
the  sheriff  in  the  present  case,  having  retained  the  money  only  in  consequence 
of  the  proceedings  at  Law  and  in  Equity,  above  stated,  having,  in  the  mean- 
time, made  no  use  of  the  money,  but  kept  it  in  bank,  and  having  ultimately 
paid  it  into  the  Court  of  Equity,  by  consent  of  all  parties,  (the  present  plain- 
tiff included,)  was  not  delinquent  within  the  meaning  of  the  statute,  and  liable 
to  its  penalty;  and  his  Honor  erred  in  charging  the  jury  that  the  sheriff  was 
liable  to  the  penalty,  although  his  conduct  was  neither  wilful  nor  corrupt. 

5.  That  the  plaintiff's  proof  was  defective,  no  evidence  having  been  offered 
of  the  judgment  of  the  phiiutiff  yA\  Aitkin,  alleged  in  the  declaration,  and  his 
Honor  erred  in  charging  the  jury  that  such  proof  was  unnecessary. 

6.  That  the  verdict  was,  iu  other  respects,  contrary  to  law  and  evidence. 


120  CHARLESTON,  FEBRUARY,  1841.      VOL.  I.  [*182 

Yeadon,  for  the  motion,  cited  2  Faust,  87,  A.  A.  1796;  and  said  penal  statutes 
■were  to  be  construed  strictly.  Thomas  vs.  Aitkin,  Dud.  Rep.  292.  This  is  a  case 
of  penalty,  and  not  one  of  stipulated  damages.  No  injury  had  been  done  on  the 
part  of  the  defendant.     A.  A.  1S39,  58,  63d  sec. 

Hunt,  contra,  cited,  1  Brev.  200 ;  P.  L.  110 ;  Bac.  Abr.  Tit.  Exon.  letter  A.  ; 
Dudley,  292.  The  decree  of  the  Appeal  Coui-t  in  Chancery  is  retrospective,  and 
shows  that  defendant,  Yates,  acted  wroug. 

Pettigru,  in  reply,  cited  1  Bail.  437;  2  Bail.  16;  Potts  vs.  Richardson;  Cooper, 
255  ;  Douglass,  519,  522,  If  one  receive  satisfaction  after  the  forfeiture,  he  never 
can  recover  the  penalty.  A  forfeiture  once  barred,  is  barred  forever,  2  B.  and  Pull, 
346 ;  5  Term  Rep.  636 ;  Bac.  Ab.  Tit.  Damages,  letter  D.  ;  Coke  upon  Litt.  258, 
letter  A. ;  Coke  Eliz.  561.  A  penalty  cannot  be  incurred  where  the  act  is  lawful. 
Defendant  -was  a  stakeholder. 


*183] 


*  Curia,  per  Butler,  J.  This  action  was  brought  under  tlie  fol- 
lowing clause  of  the  Act  of  1790 ;  5  vol.  284,  Stat,  at  large ;  "  That 
the  sheriffs  be,  and  they  are  hereby  required,  to  pay  over  to  the  plaintiff  or 
his  attorney,  all  and  every  sum  or  sums  of  money  which  they  may  respec- 
tively receive  on  account  of  such  plaintiff,  within  ten  days  after  he  shall 
receive  the  same,  any  law,  usage  or  custom  to  the  contrary  thereof,  in  any 
wise  notwithstanding ;  and  if  any  sheriff  shall  refuse  to  pay  over  the  same 
within  ten  days  after  he  shall  receive  the  same,  if  demanded,  then,  and  in 
that  case,  he  shall  be  liable  to  forfeit  and  pay  to  such  plaintiff,  the  sum  of 
fifty  per  cent,  on  the  sum  so  received,  to  be  recovered  by  action  of  debt ; 
and  the  respective  courts  out  of  which  the  executions  may  issue,  shall  be, 
and  they  are  hereby,  authorized  and  required  to  make  such  rules  and 
orders  as  they  may  judge  necessary,  to  carry  this  Act  into  effect."' 

At  the  time  the  money  was  demanded  of  the  sheriff,  in  this  case,  by  the 
attorney  of  plaintiff  in  execution,  he  had  deposited  the  exact  sura  in 
bank,  and  was  ready  and  willing  to  pay  it  over  to  either  of  tlie  jiarties 
claiming  it,  when  their  respective  claims  should  be  settled  by  the  Court. 
He  did  not  wilfully  withhold  it  for  his  own  use.  Under  a  notice  from 
the  attaching  creditors  of  the  defendant  in  execution,  as  stated  in  the 
report,  he  kept  the  money  to  abide  the  judgment  of  the  Court.  Ulti- 
mately, the  Court  of  Equity  took  jurisdiction  of  the  matter,  and  the 
money  was  paid  to  the  master,  to  be  invested  by  the  consent  of  parties. 
The  circuit  Chancellor  decided  that  the  plaintiff  was  not  entitled  to  the 
money,  but  that  it  rightfully  belonged  to  the  attaching  creditors,  on 
whose  account  the  bill  had  been  filed  This  decree  was  set  aside,  and 
finally  the  money  was  paid  to  and  accepted  by  the  plaintiff.  The  ques- 
tion now  arises,  was  the  .sheriff,  under  these  circumstances,  fairly  liable  to 
the  penalty  of  the  al)ovc  Act?  That  he  acted  in  good  faith,  I  think,  is 
unquestionable,  and  that  he  had  the  sanction  of  a  Chancellor  for  what  he 
had  done,  is  equally  true.  But  it  is  contended  that  these  aflord  no  justi- 
fication for  disregarding  the  provisions  of  the  statute,  which  gives  the 
sheriff  no  option  or  discretion  after  money  is  demanded  of  him  by  the 
plaintiff  on  record  or  in  an  execution ;  but  that  he  is  bound  to  pay  it 
over  to  such  plaintiff,  or  suitject  himself  to  a  liability  to  pay  fifty  per  cent. 
♦184 1  ""^"■'^•^^t""'l'"f?  oll'^r  claims  *niay  be  asserted  to  the  money, 
-■  which  the  sheriff  may  think,  in  good  faith,  are  better  than  the 
plaintiff's.  The  effect  of  which  might  l)c,  in  many  cases,  to  give  a  fraudu- 
lent plaintiff  a  right  to  recover  fifty  per  cent,  when  in  fact  he  was  not 


1S4] 


THOMAS    VS.    YATES.  121 


entitled  to  the  money  in  tlie  sheriff's  hands.  To  give  tliis  strict  and 
severe  construction  to  the  statute,  would  be  to  give  it  an  operation  fre- 
quently revolting  to  justice,  and  inconsistent  with  the  intent  of  the  Legis- 
lature. The  practice  of  the  courts  since  the  enactment  of  the  statute, 
does  not  sanction  such  a  construction.  Where  there  have  been  adverse 
claims  to  money  in  the  hands  of  the  sheriff,  collected  on  execution,  it  has 
always  been  the  practice  for  hira  to  hold  it  subject  to  the  order  of  the 
Court;  and  it  has  not  been  unfrequently  the  fact  that  the  money  was 
ultimately  paid  over,  not  to  the  j)laintitf  in  execution,  but  to  another 
having  the  right  to  it;  and  this,  too,  without  any  compulsory  process 
from  a  court,  requiring  the  sheriff'  to  keep  the  money  till  the  claims  to  it 
are  settled.  Indeed,  according  to  the  construction  contended  for,  such 
process,  injunction  from  Chancery,  or  an  order  from  the  Court  of  Com- 
mon Pleas,  would  be  unavailing,  as  the  Act  says  the  money  must  be  paid 
to  the  plaintiff  in  execution,  any  law,  usage  or  custom  to  the  contrary 
thereof  notwithstanding.  In  fact,  the  practice  of  the  courts  may  be 
regarded  as  founded  on  their  own  rules  in  relation  to  the  liability  and 
duty  of  sheriffs.  Where  a  sheriff  has  collected  money  on  a  Ji.  fa.,  he  is 
not  bound  to  pay  it  over  to  the  plaintiff  in  such  Ji.  fa.,  if  there  are  fi.  fas. 
in  the  office  against  him;  but  the  sheriff  is  justifiable  in  retaining  and 
paying  to  the  fi.  fas.  against  the  plaintiff,  tiie  money  collected  on  his 
account.  Niniar  vs.  Gray,  (1  Bail  440.)  In  the  case  oi  Potts  &  loor 
vs.  Richardson,  the  money  was  raised  on  plaintiff's  execution,  and  it  was 
held  that  the  sheriff"  was  not  only  justifiable  in  not  paying  it  to  the  plain- 
tiff, but  that  a  party  who  claimed  under  an  assignment  of  an  older  judg- 
ment was  not  liable  to  refund  it.  Nor  could  it  have  been  contended  that 
in  the  above  cases  the  sheriff  had  incurred  a  liability  to  pay  fifty  per  cent, 
to  plaintiff,  on  whose  executions  he  had  collected  the  money.  And  yet, 
according  to  the  literal  construction  of  the  Act  under  consideration,  such 
would  be  the  case;  for  it  is  said  that  no  law  or  usage  should  be  allowed 
to  interfere  with  the  rigorous  and  inexorable  operation  of  the  Act.  The 
Act  is  somewhat  of  a  penal  character,  and  *shonld  be  construed  r;!;-|oK 
in  reference  to  the  mischief  intended  to  be  remedied,  and  with  ^ 
strictness  in  favor  of  the  party  to  be  affected  by  it.  Wliere  the  sheriff 
has  money  and  wilfully  refuses  to  ])ay  it  over  to  a  party  unquestionably 
entitled  to  receive  it,  he  is  fairly  liable  to  the  penalty  The  Act  intended 
to  impose  on  him  a  penalty  fur  wilful  delinquency.  Not  to  allow  him 
to  hold  money  for  his  own  use,  after  another  had  acquired  a  clear  right 
to  demand  it.  It  certainly  never  could  have  been  the  intention  of  the 
Legislature  to  punish  a  sheriff  who  had  acted  in  good  faith  towards  all 
parties  who  claimed  money  in  his  office.  As  between  a  senior  and  a 
junior  execution,  it  is  frequently  very  difficult  to  decide;  the  greatest 
judge  cannot  do  it  without  full  investigation.  A  sheriff,  a  mere  minis- 
terial officer  of  the  Court,  has  the  right  to  ask  the  instruction  of  the 
Court  in  all  honestly  controverted  claims  against  him ;  and  when  he  acts 
in  good  faith,  he  should  not  be  subjected  to  forfeitures  that  were  intended 
for  the  wilful  defaulter.  Good  faith  should  be  the  criterion  of  his  con- 
duct It  will  not  do  to  say  that  the  sheriff  may  evade  the  provisions  of 
the  statute  by  fictitious  controversies  for  money  in  his  hands,  ])rocured 
and  connived  at  by  himself.  They  would  be  too  easily  detected,  to  be 
resorted  to  with  frequency.    Indeed,  the  sheriff  ought  always  to  be  held 


122  CHARLESTON,  FEBRUART,  1841.      VOL,  I.  [*185 

liable  under  the  statute,  unles  be  can  show  that  he  acted  in  good  faith  to 
all  the  parties  in  controversy.  And  if  the  defendant  in  this  case  acted 
in  bad  faith  towards  one  party,  with  the  view  of  giving  the  other  an 
advantage,  he  might  be  held  liable.  But  this  question  was  not  submitted 
to  the  jury,  and  I  think  would  have  been  of  little  avail  if  it  had  been. 
Still  it  is  a  question  which  may  be  submitted  to  another  jury;  and  I  will 
not  say  what  should  be  their  verdict.  The  sheriff  occupies  a  very 
important  position  to  the  parties  who  claim  money  in  his  hands,  and  has 
it  in  his  power  by  his  own  election  to  prejudice  their  rights,  and  I  think 
he  is  under  the  highest  obligation  to  act  in  such  a  way  as  not  to  do  one 
party  an  irremediable  injury,  by  giving  the  other  an  undue  preference. 
Like  every  stakeholder  who  is  disposed  to  act  justly,  he  should,  under 
such  circumstances,  hold  his  hand.  This  is  presented  in  a  striking  point 
of  view  by  Lord  Mansfield,  in  one  of  his  remarks  in  the  case  of  Drink- 
water  v?,.  Goodwin,  255,  Cooper.  "The  maxim  of  law  which  says  it 
shall  not  be  in  the  power  of  any  man,  by  his  election,  to  vary  the  rights 
^.,  op-j  of  *two  contending  parties,  is  a  very  wise  maxim,  as  well  as  a  very 
-J  fortunate  one  for  the  parties  who  are  so  disputing;  because  by 
giving  notice  to  such  person  to  hold  his  hand,  and  offering  him  indem- 
nity, he  renders  himself  liable  to  the  true  owner,  if,  after  such  notice,  he 
takes  upon  himself  to  decide  the  right."  I  do  not  undertake  to  say  that 
the  sheriff  may  not  have  been  justified  in  paying  to  the  plaintilf  the 
money  when  demanded.  But,  I  do  say,  he  should  not  be  punished  for 
holding  in  the  money  from  either,  until  the  controversy  between  them 
was  settled.  I  think  the  defendant's  motive  was  good,  and  so  far  from 
his  conduct  being  reprehensible,  it  received  the  sanction  of  Chancellor 
Harper,  whose  decree  should  be  regarded  as  a  virtual  protection  for  the 
defendant.  When  the  Chancellor  took  cognizance  and  jurisdiction  of 
the  matter,  his  decree  should  be  considered  as  acquitting  the  defendant 
of  all  wilful  wrong,  and  rescuing  him  from  legal  liability.  For  suppose 
the  circuit  decree  had  been  affirmed  instead  of  being  reversed,  would  it 
be  pretended  that  this  action  could  have  been  maintained  ?  I  ajtprehend 
not,  for  it  would  be  monstrous  to  conclude  that  one  party  could  recover 
under  the  statute  of  '96,  while  the  other  party  was  rightfully  entitled  to 
the  fund  in  controversy.  It  cannot  be  that  the  frequently  uncertain  result 
of  a  vexed  and  conflicting  demand  against  the  sheriff,  should  determine 
his  lial)ility.  This  would  place  the  sheriff  in  a  position  of  perilous 
responsilnlity.  Two  parties,  for  instance,  a  senior  and  junior  execution 
creditor,  might  make  a  demand  and  bring  actions  under  the  statute  at 
the  same  time ;  the  matter  might  be  litigated  through  all  the  Courts, 
with  various  success,  one  Court  deciding  one  way,  and  another  the  other. 
And  yet  it  is  said  the  sheriff  would  be  liable  to  the  successful  party, 
l)ecause  he  did  not,  in  the  first  instance,  without  information,  give  a  pre- 
ference to  one  of  the  parties.  That  is,  the  sheriff  would  Ije  required  to 
make  dcfision,  without  argument  or  investigation,  on  a  point  upon  which 
the  Courts  could  not  agree.  The  thing  runs  itself  down  into  an  absur- 
dity. The  sheriff  must  always  act  in  good  faith  when  he  withholds 
money  from  contending  parties,  and  when  he  is  sued,  it  will  be  incumbent 
on  him  to  show  this,  or  to  abide  the  consequences.  I  suppose  that  there 
cannot  again  be  any  dilliculty  under  the  Act  of  1796,  as  the  Act  of 


186] 


STATE    VS.    VON    GLON.  123 


]839,((/)  on  the  same  subject,  is  more  explicit  in  its  ^provisions,   r^iow 
This  opinion  confirms  the  trne  meaning  of  tliis  latter  Act,  which  L 
may  be  resorted  to  as  in  some  measnre  declaratory  of  the  former. 
The  motion  for  a  new  trial  is  granted. 

The  whole  Court  concurred. 

See  2  McM.,  155  ;  2  Rich.,  528,  531 ;  10  Rich.,  120.     An. 


The  State  vs.  Glaus  Von  Glon,  Jun. 

Any  trading  with  a  slave,  without  a  permit  from  his  owner  or  employe!',  in  Inly- 
ing or  selling,  for  cash  or  on  credit,  for  much  or  for  little,  is  an  indictable  offence, 
Tinder  the  Act  of  1817. 

Before  Richardson,  J.,  at  Charleston,  January  Term,  1841. 

This  was  an  indictment,  under  the  Act  of  1817,  for  illegal   trading 

with  Somerset,  the  slave  of Beckley.     The  evidence  (see  my  notes) 

proved  tliat  Somerset  often  bought  small  articles  at  defendant's  store, 
as  id  or  Id  worth  of  coSee  or  sugar  for  cash,  or  credit,  &c.  (B.  Reed- 
ing's  testimony.) 

I  charged  the  jury,  that  such  trading  came  within  the  prohibition  of 
the  Act — buying  from  or  selling  to  a  slave,  were  equally  forbidden — the 
object  was  to  prevent  all  and  any  trading. 

The  jury  returned  a  verdict  of  guilty,  and  defendant  appeals. 

1.  Because  the  Judge  charged,  that  the  sale  for  cash,  of  any  article,  how- 
ever small,  to  a  slave,  came  within  the  prohibition,  and  subjected  the  partj-  to 
the  penalty  of  the  law;  whereas,  it  is  contended,  that  the  law  only  prohibits 
purchasing,  either  for  money  or  goods,  articles  from  a  slave — and  the  simple 
retail  of  a  few  cents  of  groceries  for  cash,  is  not  illegal. 

*2.  The  evidence  established  only  that  the  defendant  had,  at  times  r*i  oo 
not  stated,  retailed  small  articles  from  his  store  to  Somerset,  the  slave  of  ^ 
the  prosecutor,  in  the  same  way  as  to  other  persons,  to  the  amount  of  four 
pence  or  seven  pence  at  a  time.     There  was  no  proof  that  he  had  ever  bought 
anything. 

Hunt,  for  the  motion,  cited  A.  A.  1817,  p.  25,(&)  and  said  that  the  whole  pur- 
view of  this  Act  was  to  prevent  buying  from  a  slave,  and  was  never  intended  to 
prevent  any  thing  but  purchasing  corn,  rice,  &c. 

He  contended  that  the  words  trading  and  trafficking  were  put  in  opposition  with 
buying, 

Bailey,  Attorney  General,  contra,  submitted  the  case  without  argument. 

Curia,  per  O'Neall,  J.  The  point  made  in  this  case  was  decided 
by  the  Constitutional  Court,  at  Columbia,  Fall  Term,  1818,  in  the  case 
against  Suber,  and  has  ever  since  been  regarded  as  settled.  If,  however, 
it  was  open  for  argument,  it  is  plain  that  under  the  words  of  the  Act, 
any  trading  with  a  slave,  without  a  permit  from  his  owner  or  employer,  in 
buying  or  selling,  for  cash  or  on  credit,  for  much  or  for  little  is  an  indict- 
able offence. 

The  motion  is  dismissed. 

The  whole  Court  concurred. 

(a)  11  Stat.,  38,  §  (33.     An.  (h)  7  Stat.,  454.     An. 


12 J:  CHARLESTON,  FEBRUARY,  1841.       VOL.  I.  [*189 


*189]  '^The  State  i*s.  John  H.  Boise  and  Deiderich  STUKE.(a) 

A  count  for  felony,  and  a  count  for  a  misdemeanor,  may  legally  be  joined  in  tlie 

same  indictment. 

Motion   to    quash   an    indictment,    made   before    Richardson,    J.,    at 
Charleston,  January  Term,  1841. 

The  indictment  charged  the  defendants,  in  the  first  count  with  a  lar- 
ceny, and  in  the  second  count  with  receiving  stolen  goods  of  some  one 
unknown.  I  held  these  counts  inconsistent  |)er  se ;  the  one  being  a 
felony,  and  the  other  a  misdemeanor ;  and  whether  both  offences  arose 
out  of  the  same  act  or  not,  was  immaterial.  For  instance,  assault  and 
battery  could  not  be  joined  with  a  count  for  murder,  although  arising  out 
of  the  same  act.  The  rules  of  pleading  did  not  admit  of  such  a  distinc- 
tion ;  and  I  accordingly  quashed  the  indictment. 

The  Attorney  General  appealed  from  the  order  of  the  Court  quashing  the 
indictment  in  this  case,  and  moves  that  the  same  may  be  rescinded,  and  the 
case  reinstated  on  the  docket  for  trial,  on  the  ground  : 

That  a  count  for  a  misdemeanor  may  be  regularly  joined  with  a  count  for  a 
felony  in  the  same  indictment;  and  that  such  joinder  is  no  ground  for  quashing 
the  indictment,  if  both  counts  relate  to  the  same  fact,  or  the  same  transaction. 

Bailey,  Attorney  General,  for  the  motion,  cited  Rice's  Rep.  431  ;  The  State  vs. 
Gaffney ;  1  Chitty's  Crim.  Law,  253,  254;  and  under  these  authorities,  contended 
that  a  count  for  a  misdemeanor  might  be  joined  with  a  count  for  a  felony  in  the 
same  indictment.  Ko  injury  could  result  to  the  defendant  by  coupling  two  counts. 
He  would  not  be  confused  in  his  defence. 

Kunhardt  and  Yeadon,  contra,  cited  The  State  vs.  Smith,  1  Rice's  Dig.  309  ;  3  T. 
Rep.  102.  By  joining  two  counts,  the  defendant's  right  of  traverse  is  taken  away. 
*19m  "^^^^  evidence  would  be  confounded.  A  felony  and  a  misdemeanor  *cannot 
be  united  in  the  same  indictment.  The  privilege  of  challenge,  they  con- 
tended, would  be  taken  away  from  the  defendant.  If  he  is  compelled  to  go  to 
trial,  lie  must  prepare  for  Ijoth  oifences,  although  distinct,  at  the  same  time. 
That  repugnancy  was  fatal  in  an  indictment ;  and  two  repugnant  charges  cannot 
be  sustained  in  the  same  indictment.  It  was,  they  contended,  a  matter  of  discre- 
tion for  the  Judge  below.  In  the  course  of  their  argument,  they  cited  1  Chitty's 
Crim.  Law,  2U8 ;  1  Rice's  Dig.  390. 

Curia,  per  Earle,  J.  The  rule  in  England  in  regard  to  the  joinder 
of  offences  is,  that  a  felony  cannot  be  joined  with  a  misdemeanor,  in  the 
same  indictment,  The  reason  which  is  assigned  for  this,  that  the  defend- 
ant would  thereby  lose  the  benefit  of  having  a  copy  of  the  indictment,  a 
special  jury,  and  of  making  his  full  defence  by  counsel,  has  no  application 
at  all  in  this  country;  on  the  contrary,  the  defendant  would  gain  by 
being  indicted  for  felony,  as  he  would  have  the  right  of  challenge,  in 
addition  to  the  other  privileges,  which  are  equally  secured  to  all  defend- 
ants, in  criminal  prosecutions.  From  analogy  to  the  rule  of  ])leadiiig  in 
civil  actions,  I  suppose  that  whenever  the  same  plea  may  be  pleaded,  and 
the  same  judgment  given,  the  oifences  may  be  joined.  No  doubt  two 
felonies  may  be  joined,  so  far  as  regards  the  objection  in  point  of  law,  as 
matter  of  (brm.  And  so  of  several  misdemeanors.  (3  T.  R.  98.)  And 
by  the  English   practice,  larceny  and   receiving  stolen   goods   may  be 

(a)  t^ame  parties  in  next  case.     An.     And  in  2  MoMort.,  252. 


*190] 


STATE   VS.    BOISE    AND    STUKE.  125 


joined,  1  Cr.  Ca.  234.  But  here  the  receiving  is  charg;ecl  as  a  felony. 
A  case  is  cited  by  Mr.  Rice,  in  his  Dig'est,  tit.  Indictment,  52,  Sla/e  vs. 
Smith,  MSS.  where  it  is  said  then",  is  a  repugnancy  in  cliarging  a  felony 
in  one  count  and  a  misdemeanor  in  another,  which  would  be  fatal.  But, 
if  fatal  at  all,  I  suppose  it  would  be  so  on  demurrer,  or  in  arrest  of 
judgment ;  and  yet  the  judgment  there  was  not  arrested,  although  the 
defendatit  was  convicted  only  of  the  receiving.  Since  the  Act  of  1829, 
subjecting  the  receiver  to  the  punishment  of  whipping,  and  that  of  1834, 
imposing  the  same  punishment  for  grand  larceny,  tiie  Act  of  1833  having 
abolished  branding.  I  can  perceive  no  greater  incongruity  or  repug- 
nancy in  joining  larceny  and  receiving  stolen  goods,  in  the  indictment, 
than  there  is  in  joining  any  other  distinct  offences,  where  *the  r^i  ni 
same  judgment  must  be  accorded.  It  is  true,  the  offences  are  L 
technically  of  different  natures.  One  is  a  felony,  and  the  other  a  misde- 
meanor. A  second  conviction  of  the  former  would  be  capital  ;  but  as 
the  formality  of  praying  the  benefit  of  the  clergy  on  the  first  conviction, 
is  wholly  dispensed  with,  and  the  punishment  of  whipping  is  peremptorily 
substituted  for  branding,  whether  clergy  be  prayed  or  not,  the  offences 
are  so  far  assimilated,  that  the  technical  objection  which  prevails  ia 
England,  to  their  being  joined,  does  not  exist  here. 

We  differ,  therefore,  with  tlie  Circuit  Court,  in  the  reason  given  for 
quashing  the  indictment,  that  the  counts  cannot  legally  be  joined.  We 
think  that  they  may  be  joined,  but  leave  it  to  the  direction  of  the  presid- 
ing Judge,  in  all  cases,  so  to  regulate  the  trial  that  the  party  shall  not  be 
prejudiced  by  the  joinders.  As  other  indictments  have  been  given  out 
and  found,  we  do  not  consider  it  material  to  make  any  order. 

O'Neall,  Evans,  and  Butler,  JJ.,  concurred,  Gantt,  J.,  dissented. 
See  State  vs.  Posey,  7  Rich.  485  ;  Chivis,  105  ;   3  Hill,  1. 


The  State  vs.  John  H.  Boise  and  Diederich  Stuke  (a) 

The  confession  of  a  clerk,  in  the  absence  of  his  emj^loyer,  that  he  had  sold  wine 
to  a  servant  girl,  is  not  evidence  to  charge  the  employer  ;  and  a  new  trial  will 
be  granted  to  the  absent  defendant,  without  prejudice. 

Before  Richardson,  J.,  at  Charleston,  January  Term,  1841. 

This  was  an  indictment  for  selling  wine  to  Matilda,  the  slave  of  B.  F. 
Dunkin.  Stuke  was  the  clerk  of  lioise.  The  evidence  must  be  referred 
to  for  the  details.  But  it  appeared,  that  Stuke  was  asked  if  he  had  not 
sold  a  bottle  of  wine  to  a  negro  girl,  that  morning,  and  he  replied,  yes. 
But,  soon  afterwards,  having  conversed  with  two  men  in  the  yard,  he  re- 
♦turned  and  said,  "no — no,  I  forgot."  Boise  was  sent  for,  and  r^-iq:) 
claimed  the  shop.  Mr.  Dunkin  had  before  come  in  with  Matilda,  ■- 
asked  her  where  the  wine  had  been  bought,  and  she  pointed  out  the 
place.     lie  then  went  for  a  search  warrant — returned   and  then  found 

(a)  Same  parties  next  case  above  ;  and  in  2  McMort.  252.     An. 


126  CHARLESTON",  FEBRUARY,  1841.      VOL.  I.  [*192 

Boise  present.  Mr.  D.  told  bim,  Boise,  his  clerk  had  admitted  he  had 
sold  a  bottle  of  wine  to  his  sfervaat,  this  morning — upon  this,  Stake  said, 
"no,  no —  I  spoke  too  quick." 

I  charged  the  jury  that  they  were  to  decide,  1.  Whether  there  had 
been  any  illegal  trading.  If  any,  2.  Who  had  done  it,  Sluke,  or  Boise, 
or  both  defendants.  3.  That  the  confession  of  Stake,  made  in  the 
absence  of  Boise,  could  be  evidence  only  against  himself — not  Boise.  4. 
That  the  jury  were  to  decide,  from  all  the  circumstances  of  the  case, 
whether  Boise  had,  or  had  not,  authorized  the  illegal  trading  alleged  to 
have  been  done  by  his  clerk,  Stuke.  And,  if  he  had  done  so,  he  might 
be  convicted — but  otherwise,  not  to  couvict  him. 

It  will  be  seen,  by  the  evidence,  that  there  was  adduced  against  Boise 
scarcely  any  thing  to  implicate  him  in  the  particular  trading ;  l)ut  that 
he  was  master  of  the  shop.  The  jury  returned  a  verdict  of  guilty,  and 
the  defendants  appeal. 

GROUNDS   OF   APPEAL. 

1.  That  the  allegation  in  the  indictment  was,  that  the  defendants  sold  a 
bottle  of  wine  to  Matilda,  the  slave  of  B.  F.  Duniiia,  and  the  proof  merely  that 
Stuke,  (the  clerk)  confessed  that  he  had  sold  a  bottle  of  wine  that  morning, 
(his  principal  being  absent  at  the  time  of  both  the  sale  and  the  confession,) 
to  a  negro  girl,  or  a  servant  girl,  without  in  any  manner  indicating  whose,  or 
wdiat  negro,  or  servant  girl  ;  and  his  Honor  erred  in  charging  the  jury,  that 
they  could  convict  the  defendants  on  such  evidence  ;  and  the  finding  of  the 
jury  is  unsupported  by  the  evidence. 

2.  That  there  was  no  evidence  at  all  to  convict  the  defendant,  Boise,  there 
having  been  no  proof  at  all  to  connect  him  with  the  selling  by  his  clerk  in  his 
absence  ;  and  there  being  no  proof  at  all  of  any  selling,  save  the  clerk's  con- 
fession, subsequently  retracted,  and  afterwards  denied  in  the  principal's  presence  ; 
and  the  finding  against  the  principal  was  in  violation  of  the  cardinal  principle, 
*193l  ^'^^tone  man  cannot  be  convicted  *of  an  offence  on  the  mere  con- 

-l  fession  of  another,  and  that  only  of  his  own  guilt. 

3.  The  verdict  was,  in  other  respects,  contrary  to  law  and  evidence. 

Kunhardt,  for  the  motion,  contended  that  the  mere  confession  of  a  party  of  his 
guilt  should  never  be  given  in  evidence  against  a  third  person.  The  confession  of 
Stuke,  he  argued,  did  not  come  up  to  the  allegation  in  the  indictment,  hut  he 
argued  that  the  proof  should  correspond  with  the  allegation. 

Bailey,  Attorney  General,  contra,  asked  whether  the  Court  would  interfere  and 
set  aside  the  verdict  of  the  jury;  where  there  is  no  misdirection  of  the  Court.  He 
contended  that  juries  might  weigh  all  the  circumstances,  as  well  as  the  words.  1 
Phil.  Ev.  70,  77. 

Curia,  per  Richardson,  J.  In  this  case,  we  think  that  the  defendant, 
J.  11.  Boise,  ouglit  to  have  a  new  trial,  without  prejudice.  And  it  is, 
so  ordered.     But  the  motion  ou  the  part  of  D.  Stuke  is  dismissed. 

The  whole  Court  concurred. 


194] 


HARRIS   VS.   CLAYTON.  127 


*194]  *IIarrts,  Administrator,  vs.  David  Clayton. 

Goods  distrained  by  a  landlord  for  rent  in  arrear,  and  replevied  by  the  tenant, 

(although  they  may  be  removed  to  other  premises,)  are  liable  first  to  the  lien  of 

the  Retorno  habendo  cumji.  fa. 
The  lien  of  a  distress  warrant  iipon  goods  replevied,  is  never  lost ;  neither  does  it 

give  place  to  any  other.     The  sale  of  the  goods  is  merely  suspended,  in  order 

to  try  the  question  whether  the  rent  is  truly  in  arrear. 

Before  Richardson,  J.,  at  Charleston,  January  Terra,  1841. 

This  was  a  rule  on  the  sheriff,  to  show  cause  why  he  should  not  be 
attached  for  contempt,  in  not  paying  over  to  the  plaintiff  the  money 
made  under  the  Retorno  habendo  cum  fi.  fa.  in  this  case. 

The  sheriff  showed  for  cause  that  there  were  prior  executions  in 
his  hands,  against  the  defendant,  which  he  was  advised  were  iprior  liens 
on  the  fund,  and  he  was  unwilling  to  pay  over  the  money  to  the  plaintiff 
without  an  order  from  the  Court. 

I  was  of  opinion  that  the  sheriff,  having  levied  under  the  Retorno 
habendo  cum  fi..  fa.  on  the  individual  goods  which  were  the  subject  of 
the  original  distress,  although  the  goods  had  in  the  mean  time  been 
removed  to  other  premises,  the  lien  of  the  plaintiff  was  restored  by 
relation,  and  he  was  entitled  to  the  money  against  prior  executions,  I 
therefore  made  the  rule  absolute,  and  the  sheriff  appeals,  on  the  annexed 
ground : 

That  the  prior  executions  in  the  sherifT's  hands  were  entitled  to  the  money 
as  prior  liens,  and  his  Honor  should  have  discharged  J;he  rule. 

Yeadon,  for  the  motion,  contended  that  where  goods  had  been  distrained,  and 
the  tenant  had  given  bond,  and  the  goods  were  replevied,  the  landlord  lost  his 
lien  upon  them ;  and  in  support  of  this  proijosition,  he  cited  2  Dallas,  GS  ;  it). 
131,  Fry  vs.  Leper ;  also.  Brown's  Cases  in  Chancery. 

"  Lesesne,  contra,  cited  4  McCord,  49(3,  and  under  this  authority  contended  that 
by  replevying,  the  lien  of  the  landlord  *was  only  suspended,  not  entirely  p*-,nc 
gone.     Cited  also,  6  Bacon  Abr.  67.  •-   ^''^ 

Curia,  per  Richardson,  J.  Harris,  the  landlord,  distrained  the 
goods  of  his  tenant,  Clayton,  who  replevied  them,  and  of  course  gave 
bond  and  securities  for  their  return,  &c.  if  the  rent  proved  to  be  in 
arrear. 

The  verdict  upon  the  replevin,  found  the  rent  claimed  by  Harris,  the 
avowant;  and  the  Retorno  habendo  was  properly  levied  upon  the  goods 
replevied,  and  still  undisposed  of  by  the  tenant,  although  removed  to 
other  premises.  In  the  mean  time  an  execution  of  fc.  fa.  had  been 
lodged  with  the  sheriff.  This  was  prior  to  tlie  Retorno  habendo,  and 
such  an  execution  has  a  lien  upon  all  the  goods  of  the  defendant  not 
otherwise  pledged. 

Does  this  general  lien  give  place  to  the  particular  lien  of  the  distress 
warrant,  upon  the  goods  so  replevied  ?  is  the  question  for  the  Court.  It 
is  admitted  that  if  the  goods  had  in  the  mean  time  been  distrained,  upon 
other  premises,  for  other  rent ;  or  if  Clayton  had  sold  them,  while  legally 
in  his  hands,  then  the  lien  of  the  distress  warrant  would  have  been  "lost, 
(2  Dallas,  68  ;  Brown's  Chancery  Cases,  428.)     The  tenant  would  have 


128  CHARLESTON,  FEBRUARY,  1841.      VOL.  I.  [*195 

broken  his  bond  of  replevin,  and  the  sheriff  must  have  returned  Elongata 
sunt  to  the  Relurno  habendo.  And,  in  that  case,  the  avowant  must 
have  resorted  to  the  execution  in  "  Withe  mam, ^\a)  to  talve  other  goods  ; 
or  else,  the  replevin  bond  being  thus  forfeited,  must  sue  the  tenant  and 
his  sureties  upon  it.  But  when,  as  in  this  case,  the  sheriff  returned  to 
the  avowant's  execution,  that  he  found  the  replevin-goods  just  where 
they  were  placed,  and  ought  to  be,  in  the  hands  of  the  tenant,  the  land- 
lord had  no  other  remedy,  but  to  sell  the  goods  to  pay  the  rent.  As 
between  the  landlord  and  tenant,  the  lien  of  the  distress  warrant  was 
never  lost.  The  sale  of  the  goods  was  merely  suspended  in  order  to  try 
the  question,  whether  the  rent  had  been  truly  in  arrear ;  and  the  moment 
that  was  established,  both  parties  stood  in  statu  quo,  practically,  as  they 
stood  before  legally,  but  in  abeyance,  waiting  for  the  decision  of  that 
fact. 

The  doctrine  of  distress  for  rent,  with  the  right  of  replevin,  followed 
by  the  reason  of  the  peculiar  execution  of  Retorno  habendo,  and  that  of 
*iqri  11  <'^'t^''"^»^  i'l  the  case  of  eloignment  of  *goods,  plainly  indicate 
-J  that  the  lien  of  the  distress  warrant  renders  it  plain  that  both  the 
Retorno  and  the  Withernam  go  upon  the  assumption  of  such  a  continued 
lien.  The  question  then  is,  upon  the  priority  of  the  two  executions,  the 
one  a  specihc,  the  other  a  general  lien  and  prior. 

As  a  test,  let  us  suppose  that  there  had  been  no  distress  warrant  for 
the  rent,  and  the  Ji.  fa.  had  been  levied  upon  such  goods  as  were  subject 
to  be  distrained  ;  in  that  case,  the  rent  now  acquired,  must  have  bceu 
paid  before  the  yi. /a.  under  settled  law.  (DeLiesseline^s  case,  4  McCord, 
496.)  And  the  only  difference  is,  that  the  Retorno  habendo  has  been 
levied  upon  such  such  goods  of  the  premise's,  but  which  had  been  lawfully 
removed  by  suspending  the  distress  warrant,  in  order  to  try  a  supposed 
violation  of  law,  in  making  the  distress.  In  such  case,  no  general  lien, 
which  is  of  course  sul)ject  to  i)rior  and  specific  liens,  can  deprive  the 
landlord  of  his  specific  and  vested  lien  upon  the  particular  goods  he  had 
distrained. 

It  would  seem,  too,  that  the  sheriff  having  found  the  very  goods  undis- 
posed of  by  the  tenant,  nor  eloigned  by  any  act  of  his,  the  Retorno 
habendo  could  not  but  be  returned  satisfied  ;  and  of  course  they,  the 
sureties  to  the  replevin  bond,  who  undertook  that  the  goods  should  not 
be  eloigned,  were  ipso  facto  discharged  from  their  obligation  by  its  ful- 
filment ;  and  then,  of  course,  the  landlord  would  be  confined  to  his 
remedy  against  the  tenant.  . 

The  Court  therefore  affirm  the  Circuit  decision. 

The  whole  Court  concurred. 

See  3  McC.  43.     An. 
(«)  2  N.  &  M.  444.     An. 


*197] 


HORLBECK   VS.    HUNT.  129 


*JOHN    HORLBECK,  SURVIVOR   OF    HeNRY    HoRLBECK,    VS.    BeN.J.    [*197 

F.  Hunt. 

After  the  statute  has  run  out,  there  must  be  "an  express  promise  to  pay,  or  an 
admission  of  a  subsisting  debt  which  the  party  is  willing  and  liable  to  pay."' 

Whether  the  acknowledgment  proved  is  sufficient  to  take  a  case  out  of  the  statute, 
is  a  question  for  the  Court,  and  not  one  of  evidence  or  construction  for  the  jury. 

Before  Richardson,  J.,  at  Charleston,  January  Term,  1841. 

This  was  an  action  of  assumpsit  upon  an  account  for  work  and  labor 
done  and  materials  furuished,  &c.,  between  the  years  1820  and  1830. 
The  defendant  pleaded  non  as^^umpsif,  and  the  statute  of  limitations. 
The  account  was  proved  ;  and  the  case  turned  upon  the  question, 
whether  the  defendant  had  acknowledged  and  assumed  to  pay  the  debt 
within  four  years  before  the  action  had  been  commenced.  The  account 
had  not  been  presented  until  18-40. 

Peter  Horlbeck,  the  son  of  Henry  Horlbeck,  was  offered  as  a  witness,  to  prove 
an  acknowledgment,  &c.,  by  the  defendant.  He  was  objected  to,  and  released  his 
interest  in  the  case,  (see  his  release;)  and,  on  his  voire  dire,  swore,  that  he  had 
sold  out  his  interest  in  the  estate,  and  had  no  further  interest  but  in  the  debts. 
Upon  this,  the  Court  ruled  that  he  was  competent  to  give  evidence. 

He  was  then  swoni  in  chief,  and  testified  as  follows :  Witness  presented  the 
account  early  last  year,  and  defendant  said  he  would  revise  it.  Early  last  sum- 
mer, say  two  or  three  months  after  witness  had  called,  he  called  again.  Defend- 
ant said  he  had  revised  the  account.  Said  he  could  not  pay  it  now.  If  it  had 
been  presented  eight  years  ago,  he  could  easily  have  paid  it.  That  circumstances 
had  altered  with  him.  That  he  could  not  pay.  It  would  have  to  come  in  with 
his  other  debts.  Witness  told  him  they  wished  to  close  the  books,  and  if  he 
would  settle  by  note,  or  bond  and  mortgage,  at  any  time  convenient  to  himself,  it 
would  answer.  Defendant  declined  entirely  to  give  any  obligation  ;  say  any  thing 
of  the  kind — as  bond,  note,  &c.  Defendant  and  witness  were  alone.  A  gentle- 
man was  in  the  next  room.  The  door  had  been  closed  by  the  defendant.  Defend- 
ant did  not  object  to  any  item.  Thinks  defendant  had  the  account  in  his  hand. 
Said  he  was  sorry  it  had  not  been  presented  before.  He  made  no  objections*  r*-iqc 
to  witness.  Thinks  he  said  he  presumed  it  was  right,  or  something  of  the  '- 
kind.  He  said  it  would  come  in  to  be  paid  with  his  other  debts.  Witness  was 
authorized  to  make  the  offers  he  did  by  plaintiff.  A  letter  was  written  by  Dr. 
Horlbeck.  Can't  say  why  the  account  was  not  presented.  His  bi'other  was  a 
student  with  the  defendant  many  years  ago.  He  is  now  upwards  of  thirty  years 
old.  Plaintiff  was  indulgent  to  his  debtors  ;  or  negligent  perhaps.  Difficult  to 
get  accounts  from  him. 

Cross-examined — Defendant  said  he  could  not  pay  the  account  now ;  but  said 
something  of  presuming  it  was  right.  Did  not  say  he  had  examined  it.  It  must 
come  in  with  his  other  delrts.  Declined  giving  bond  or  note.  That  he  could  not 
pay  it ;  it  mtist  come  in  with  other  debts.  Can't  say  if  he  did  or  did  not  say  that 
•  he  would  not  come  under  obligation.  Understood  him  to  admit  the  debt ;  but 
spoke  of  his  inability  to  pay.  Gave  no  reason  for  not  giving  a  note,  that  witness 
recollects.     Has  stated  defendant's  words  as  well  as  he  recollects. 

The  plaintiff's  counsel  argued,  that,  although  there  had  been  proved  no  express 
promise  to  pay  the  account,  after  the  statutoi-y  bar  had  become  complete,  yet  the 
acknowledgment  proved  was  sufficient  to  take  the  case  out  of  the  statute. 

I  charged  the  jury,  that  before  they  could  find  for  the  plaintifiF  they 

must  be  satisfied,  (the  statutory  bar  being  complete,)  that  the  defendant 

had  promised  anew,  to  pay  the  account.     That  the  action  in  such  case 

must  be  bottomed  upon  the  new  promise ;  the  old  debt  being  the  cou- 

VoL.  L— 10 


130  CBARLESTOX,  FEBRUARY,  1841.      TOL.  I.  [*198 

sideration.  Such  an  action  could  not  lie,  without  some  new  undertaking 
on  his  part ;  and  that  it  must  amount  to  the  expression  of  a  willingness, 
and  a  liability  still  to  pay  the  debt,  which  had  been  barred.  Tiie  jury 
had,  therefore,  to  decide  whether  the  evidence  proved  such  a  promise,  or 
not ;  and  to  find  accordingly.  They  found  for  the  plaintiff,  and  the 
defendant  appeals  on  the  following  grounds  : 

1.  That  the  witness,  Peter  Horlbeck,  was  directly  interested  in  the  event  of 
the  suit,  and,  therefore,  incompetent ;  and  having  been  objected  to,  ought  not 
to  have  been  admitted  to  testify. 

2.  That  there  was  no  evidence  of  any  acknowledgment  by  the  defendant,  of 
*iqoi   any  subsisting  legal  liability,  nor  any  promise  *to  pay,  but  on  the  con- 

-1  trary  a  positive  refusal  to  incur  any  obligation  ;  and  there  was  nothing, 
therefore,  to  take  the  case  out  of  the  operation  of  the  statute  of  limitations; 
and  his  Honor  ought  so  to  have  charged. 

3.  That  the  construction  of  the  words  alleged  to  have  been  used  by  the 
defendant,  was  a  question  of  law  for  the  Court,  and  not  of  fact  for  the  jury  ; 
and  his  Honor  erred  in  leaving  the  question  to  the  jury,  but  should  have  charged 
directly,  that  they  were  not  sufficient  to  prevent  the  bar  of  the  statute. 

4  That  the  verdict  is  without  evidence,  against  evidence  and  directlycontrary 
to  the  settled  law. 

Bnilcy,  for  the  appellant,  on  the  first  gi-ound,  cited  1  Phil.  Ev.  53,  and  contended 
that  the  witness,  P.  Horlbeck,  had  a  legal  interest,  and  was  an  incompetent  wit- 
ness. Cited  2  Starkie  Ev.  734 ;  1  Phil.  Ev.  49,  50,  52 ;  and  1  Bail.  Rep.  3li2 ; 
Pickett  vs.   Cloud. 

On  the  second  ground,  he  cited  and  relied  on  2  Bail.  278  ;  Dudl.  118  ;  and  Chev. 
Rep.  33,  and  contended  that  the  ground  of  recovery  is  an  express  assumpsit ;  but 
he  denieil  that  there  was,  in  this  case,  any  promise  or  undertaking  (from  the  tes- 
timony) to  laise  even  a  presumption  of  a  promise  to  pay. 

On  the  third  ground,  Mr.  Bailey  contended  that  it  was  a  question  of  law  for  the 
Court,  and  not  such  a  question  as  should  be  decided  by,  or  left  to,  a  jury. 

Yeadon,  contra — lirst  ground — said,  that  if  the  witness,  P.  Horlbeck,  had  a 
legal  interest,  he  would  admit  that  he  was  not  a  competent  witness,  but  he  con- 
tended that  hi'  had  not  such  an  interest  as  would  exclude  him  from  testifying ; 
that  he  was  not,  in  any  event,  liable  for  costs  in  this  case.  That  this  was  not  one 
of  the  specific  <lebts,  in  which  the  witness  had  a  legal  interest. 

On  the  second  ground,  he  cited  also.  Dud.  Rep.  118,  and  2  Bail.  188,  contend- 
ing, at  the  same  time,  that.it  was  not  necessary,  in  order  to  take  a  case  out  of  the 
statute  of  limitations,  that  there  should  be  an  express  promise,  but  that  a  subsist- 
ing debt,  with  slight  evidence,  would  take  the  case  out  of  the  statutory  bar.  Mr. 
■ieadon  contended,  further,  that  the  statute  of  limitations  never  was  intended  to 
*2001  P''^*'''^^  against  a  just  debt,  *but  an  unjust  or  antiquated  claim  ;  cited  2 
.Starkie,  s94.  The  testimony  does  amount  to  the  acknowledgment  of  a  just 
and  subsisting  debt.  2  Starkie,  893.  Note  from  4  East,  492.— Where  one  admits 
a  del)t  to  lie  «lue  and  just,  he  must  prove  that  he  utterly  refused  to  pay,  or  the 
])resumption  arises  that  lu;  promised  to  pay.  He  also  insisted  that  if  the  expres- 
hions  were  airibiguous,  they  should  go  to  "the  jury  to  decide;  and  he  contended 
tliat  in  this  case  the  defendant  did  use  ambiguous  words  ;  cited  2  Starkie,  b95, 
i^ote  A  ;  2  T.  Rep.  7(iO  ;  8  E.  Conunon  Law  Kep.  317  ;  (J  Ih.  447  ;  Chitty  on  Coutr. 
G4],  note.  "  H"  the  words  express  ambi^juity,  they  may  properly  go  to  the  jury, 
and  they  may  decide."     2  M.  &  P.  583. 

Jiiif.,  do.  From  the  commencement  of  this  account  up  to  the  case  of  Young  vs. 
Mn„],nr.;i,  in  1830,  it  required  but  very  slight  evidenc*-  to  bar  by  the  statute  of 
limitations.  He  cited  Chitty  on  Conts.  (327,  and  contended  that  the  statute  of 
limitations  did  not  discJiarge  the  debt,  but  was  only  a  bar  to  the  remedy— the  lien 
still  existed.  2  Bail.  2b3  and  425;  2  Hill,  32(3;  Chitty  on  Contr.  t)42,  were  re- 
ferred to.  Mr.  Rice  said,  that  fiom  the  testimony,  there  was  no  ground  or  reason 
to  suppose  that  the  defendant  denied  the  debt,  and  refused  to  pay  it ;  but  that  he 


*200]  nORLBECK    vs.    HUNT.  131 

pleaded  his  inability,  clearly  intending  tliat  plaintift"  should  receive  a  dividend  of 
his  property.     Cited  Leigh's  N.  Prius,  1258  ;   1  (Wheaton)  Selwyn,  142. 

Bailey,  in  reply,  said  that  defendant  had  refused  to  incur  legal  obligation,  and 
again  contended  that  the  witness,  P.  Horlbeck,  was  an  incompetent  witness,  either 
from  feeling  or  the  pecuniary  interest  which  he  had  in  this  case  ;  that  he  was  en- 
titled to  a  share  of  the  personal  estate  not  yet  collected,  and  was  also  liable  for 
his  share  of  the  costs  of  this  suit.  Mr.  B.  referred  to  May  vs.  Hancock,  (a) 
decided  in  Columbia,  May,  1829. 

Curia,  per  O'Neall,  J.  This  is  another  of  the  many  cases  depending 
upon  the  rule  in  Young  vs.  Moiipoey,  (2  Bail.  278.  It  has  been  fol- 
lowed by  so  many  cases,  and  with  such  uniformity,  that  it  cannot  now  be 
shaken,  by  even  a  case  of  more  than  ordinary  hardship.  It  is  only 
necessary  to  state  the  rule,  and  see  how  this  case  is  effected  by  it.  After 
the  statute  has  run  out,  there  must  be  "an  express  promise  to  pay  or  an 
*admission  of  a  subsisting  debt  which  the  party  is  willing  and  r^^rv, 
liable  to  pay."  On  the  present  occasion,  there  is  no  pretence  that  •- 
there  was  an  express  promise  to  pay.  What  is  meant  by  the  admission 
of  a  subsisting  debt,  which  the  party  is  willing  and  liable  to  pay  ?  I 
think  Judge  Johnson,  in  Young  vs.  Moni^oey,  (2  Bail.  280,)  gave  a 
very  haj)py  illustration  of  what  is  meant.  He  said  "if  there  be  an 
unequivocal  admission,  that  it  is  due  and  unpaid,  unaccompanied  by  any 
expression,  declaration,  or  qualification,  indicative  of  an  intention  not  to 
pay,  the  state  of  facts  on  which  the  law  implies  a  promise,  is  then  present 
and  the  party  is  bound  by  it."  This  illustration  was  further  explained  and 
enforced  in  lleigne  vs.  Despjortes,  (Pud.  Rep.  118,)  which  declared  the 
old  debt  to  be  the  consideration,  and  the  new  promise  the  cause  of  action. 
Taking  either  or  both  of  these,  it  is  apparent  that  the  promise  here  is 
not  sutEcient.  It  admitted  the  old  debt  to  be  due  and  unpaid,  but  it 
was  accompanied  by  a  plain  expression  that  the  party  did  not  intend  to 
pay,  when  he  said  "  he  could  not  pay,"  and  when  he  declined  the  very 
liberal  offer  to  settle  by  note  or  bond  on  his  own  time.  Let  it  be  tested 
by  asking  where  is  the  new  promise  on  which  an  action  could  be  sus- 
tained ?  It  cannot  be  contended  that  it  is  found  in  the  admission  of  a 
debt,  of  which  the  defendant  says  "  if  it  had  been  presented  eight  years 
ago,  I  could  easily  have  paid  it.  Circumstances  have  altered  with  me.  I 
cannot  pay.  His  other  observation,  "it  must  come  in  to  be  paid  with  my 
other  debts,"  is  all  which  remains.  But  that  is  no  undertaking  to  pay 
it.  It  is  simply  saying  it  must  stand  as  it  is,  and  take  its  chance  for 
payment  with  my  other  debts.  The  true  mode,  however,  of  arriving  at 
what  the  defendant  meant,  is  to  take  the  whole  conversation,  and  when 
we  do,  we  see  that  while  the  defendant  admitted  that  the  debt  once  was 
due,  and  might  once  have  been  paid,  that  now  he  declined  to  admit 
either  his  liability  or  willingness  to  pay. 

The  case  of  Hughes  vs.  Hughes,  (Cheve's  E.ep.  34,)  was  a  stronger 
admission  than  that  which  is  relied  upon  here,  and  yet  the  bar  of  the 
statute  was  there  allowed. 

In  Loicrey  vs.  Dubose,  (2  Bail.  425,)  the  promise  was  in  writing, 
endorsed  on  the  note  "  this  note  was  given  in  swap  of  horses,  which  (if 
admitted,  though  out  of  date,  and  sued  in  Sumter  district,  shall  never 

(a)  MS,     See  1  Rice's  Dig.  303,  §  47 ;  204,  I  35. 


132  CHARLESTON,  FEBRUARY,  1841.      YOL.  I.  [*201 

be  pleaded  in  court,  as  I  take  no  advantage  of  the  Act  of  Limitations." 
^,^„n-i  The  conditions  ^contained  in  this  promise  were  complied  with, 
'^"  -^  and  it  was  held  to  take  the  case  out  of  the  statute.  That  was  a 
]ilain  admission  of  a  subsisting  debt,  which  the  party  admitted  he  was 
willing  and  liable  to  pay,  notwithstanding  the  statute.  From  the  condi- 
tions he  probably  intended  to  endeavor  otherwise  to  defeat  the  payment. 
But  there  was  no  refusal  of  payment  accompanying  the  promise,  and 
therefore  that  case  cannot  help  the  plaintiff. 

It  has  been  said  the  admission  proved  here,  was  ambiguous,  and  that 
therefore  the  jury  might  well  conclude  that  it  was  equivalent  to  the  legal 
requisition.  But  I  hold,  as  it  was  ruled  in  Trammell  vs.  S'tlmon,  (2 
Bail.  308,  310,  311, )(a)  that  whether  the  acknowledgment  proved  is 
sufficient  to  take  the  case  out  of  the  statute,  is  a  question  of  law  for  the 
Court,  and  not  one  of  evidence  or  construction  for  the  jury.  Any  other 
rule  will  destroy  the  whole  force  and  uniformity  of  the  rule  settled  in 
Young  vs.  3Ionpoey,  and  will  present  the  very  state  of  non  certainty 
which  that  rule  was  intended  to  remedy.  One  kind  of  acknowledgment 
will  do  before  one  jury,  while  a  different  one  will  be  required  by  another. 
This  must  not  be.  I  perceive  the  late  decisions  in  England,  under  Lord 
Tenterden's  Act,  by  leaving  the  construction  of  written  promises  to  the 
jury,  are  literally  repealing  the  statute.  This  consequence  there  will 
prevent  us  from  following.  Our  course  is  settled.  We  shall  adhere  to 
the  rule  in  Young  vs.  Monjwey,  in  all  cases,  and  shall  consider  that  its 
application  belongs  to  the  Court  and  not  to  the  jury. 

The  motion  for  a  new  trial  is  granted. 

The  whole  Court  concurred. 

See  G  Rich.  27,  219 ;  3  Ricli.  2S7 ;  4  Strob.  220 ;  Dud.  118 ;  2  Bail.  310 ;  3  Hill, 
223.     An. 


*203]  *A.  Olin  vs.  Figeroux  &  Champy. 

Defendants  purchased  from  plaintiff  a  box  of  goods,  which  plaintiff  had  received 
fronri  I'itray  &  Viel,  by  a  power  of  attorney  from  one  Cuvillier,  and  upon  which 
phiintiffhad  paid  the  expenses,  and  was  in  the  said  power  of  attorney  declared 
the  jmrcliaser.  After  the  sale  by  plaintiff,  to  defendants,  a  writ  of  foreign  attach- 
ment was  issued  against  the  said  Cuvillier  ads.  Charles  Jugnot.  The  account 
was  afterwards  attached  in  the  hands  of  the  defendants,  and  the  money  paid  by 
tlicm  into  Court,  without  notice  to  the  plaintiff.  Held,  that  the  plaintiff  was  not 
estopped  by  the  proceedings  in  attachment  from  recovering  against  the  defend- 
ants the  price  of  the  box  of  goods ;  and  their  paying  tlxe  money  into  Court  did 
not  discliarge  their  liability. 

Tlifre  is  nothing  in  the  attachment  Act  which  would  require  one  to  come  into 
Court  and  litigate  his  rights  in  a  suit  to  which  he  is  not  a  party. 

Before  Richardson,  J.,  at  Charleston,  January  Terra,  1841. 

Assumpsit  on  account  for  goods  sold.     The  defendants  had  admitted 
the  account,  Init  said  the  debt  had  been  attached  in  their  hands,  &c. 
It  appeared  that  the  plaintiii's  writ  was  filed  18th  April,  1840.     An 

(a)  6  Rich.  124.     An. 


^203] 


OLIN"   VS.    FIGEROUX    &    CIIAMPT. 


attachment  had  been  filed  21st  January,  1840,  by  Jagnot  vs.  CuviUier  ; 
and  the  money  was  paid  into  Court,  by  order,  &c  ,  in  May,  without 
notice  to  the  present  plaintiff,  and  Jugnot  received  the  money  upon  the 
usual  terms.  The  return  of  the  garnishees  was  received  as  competent, 
as  a  necessary  part  of  the  proceedings  in  the  attachment,  althougli 
objected  to. 

There  was  evidence  adduced,  which  left  it  questionable  whether  the 
goods  sold  belonged  to  the  plaintiff,  Olin,  or  to  Cuvillier,  (see  my  notes.) 
But  the  case  turns  upon  the  charge  to  the  jury. 

I  charged  them,  that  the  plaintiff  was  estopped,  by  the  proceedings  in 
the  attachment ;  and  the  defendants  discharged  from  the  payment  of  the 
money,  a  second  time.  The  jury  found  for  the  defendants,  and  the 
plaintiff  appeals. 

judge's  notes  of  evidence. 

Macbeth — Defendants  called  and  admitted  they  had  purchased  the  goods,  and 
were  willing  and  ready  to  l>ay.     But  the  debt  had  been  attached  in  their  hands. 

Lkfence — Defendants  have  paid  the  money  into  Court.  Attachment  21st  .January, 
1840.  Order  in  May,  to  pay  into  *Court,  and  the  money  was  paid.  This  r^onj 
writ  is  of  April  18th,  1840.  Attachment  in  the  name  oi  Jugnot  vs.  Cuvillier,  ^  "■ 
and  defendants  made  garnishees.  But  no  notice  of  the  money  heing  paid  into 
Court,  was  given  to  plaintiff,  and  Jugnot  has  got  the  money,  &c.,  to  ha  repaid,  if 
he  should  not  recover  against  Cuvillier.  The  return  of  the  garnishees,  &c.,  filed 
4th  April,  1840.     Tliey  are  competent. 

Roger — 18th  August,  1839,  received  the  bill  of  lading,  with  orders  to  deliver  to 
owners  ;  the  box  was  marked  E.  C.  Olln  called  for  the  box,  he  said  it  was  his  ; 
produced  bill  of  sale,  and  power  to  receive  the  case.  This  was  Cuvillier' s  power, 
&c.,  (see  the  power.)  In  January,  1840,  Olin,  plaintiff,  had  box,  and  paid  for  it. 
He  paid  expenses,  duties,  freight,  &c.,  &c.,  and  freed  the  case.  ICth  or  17th  Jan- 
uary, Jirgnot  called,  and  asked  if  he  had  such  a  case  for  Cuvillier.  Witness  told 
him  what  had  been  done.  Witness  told  Jiignot  it  had  been  sold  to  Figeroux  & 
Champy,  by  Olin.  Witness  advised  Figeroux  upon  the  attachment  being  issued ; 
advised  him  to  pay  the  money  into  Court. 

Michel — Cuvillier  borrowed  money  of  plaintiff,  Olin,  and  of  witness  too. 

Cross-examined — Olin  said  he  would  not  be  covered  by  the  case  by  $200.  Cuvil- 
lier said  he  would  send  on  goods  to  pay  the  debt,  &c. 

Court — Thinks  plaintiff  having  notice  of  the  attachment  of  Jugnot,  cannot  re- 
cover. 

COPY  OF  ketukn. 

Charles  Jugnot  vs.  Eugene  Cuvillier. 

State  oj  South  Carolina —  Common  Pleas — Attachment. 

Personally  appeared  before  me,  Benj.  Figeroux  and  0.  Champy,  who  being  duly 
sworn,  deposed,  that  they  have  been  served  with  a  copy  writ  of  attachment  in  the 
above  case,  and  they  make  the  following  return,  to  wit :  that  they  have  a  box  of 
goods  in  their  hands,  for  which  they  agreed  to  give  the  sum  of  $279.  The  goods 
were  sold  by  Mr.  Olin  to  them,  and  as  they  are  in  doubt  to  whom  the  money 
belongs,  (as  Mr,  Olin  informed  Mr.  0.  Champy,  that  he  intended  to  send  some 
portion  *of  said  money  to  Mr.  Cuvillier,)  they  pray  to  be  allowed  to  pay  the  r^op,- 
money  into  Court,  anil  to  be  discharged  with  their  reasonable  costs  and  L  ^  ■' 
charges.  Tliey  further  swear,  that  they  know  of  no  other  proiierty  of  the  said 
Eugene  Cuvillier. 


Sworn  to  before  me,  this    )    „.   ,„   ^  /->    tt 

28th  March,  1840.  \  ^'  ^^-  ^^^'^^rdt,  Q.  U. 

Endorsed,  Pringle,  for  garnishee.     Filed  April  4th,  1840. 


B.  FIGEROUX, 
OSCAR  CHAMPY. 


134:  CUARLESTON,  FEBRUARY,  1841.      VOL.  I.  [*205 

ORDER   OF   COURT,    8tU    JANUARY,    1841 

Jugnot  vs.  Cuvillier.  Case  of  Attachment. — On  motion,  it  is  ordered,  that  the 
clerk  do  pay  over  the  money  to  the  plaintiff,  paid  him  in  this  case,  upon  giving 
the  security  required  by  law. 

J.  S.  R. 

Recognizance  in  attachment — Without  date  as  to  either  day,  month  or  year — 
Charles  Jugnot  and  W.  W.  Kunhardt,  obligers  to  the  State,  in  the  sum  of  $592  40, 
(for  the  use  of  Eugene  Cuvillier,)  recited  writ  issued  by  Jugnot  against  Cuvillier, 
an  absent  debtor,  and  conditioned  that  Jugnot  should  prosecute  his  suit  to  judg- 
ment with  effect,  and  should  cause  to  be  forthcoming  and  return  to  the  absent 
debtor,  the  sum  of  $296  20  cents,  in  case  the  absent  debtor  should  appear  in  Court, 
within  a  year  and  a  day  from  the  date  of  the  bond,  and  discharge  himself  of  the 
demand  of  the  said  Jugnot ;  and  if  the  absent  debtor  should  not  appear  as  afore- 
said, then  that  the  said  Jugnot  should  deliver  into  the  hands  of  the  clerk,  all  such 
overplus  of  moneys  as  shall  be  paid  to  liini,  after  paying  and  satisfying  thereout, 
such  sums  as  should  be  awarded  by  the  judgment  of  the  Court,  that  the  same 
might  remain  subject  to  the  further  order  of  the  Court. 

COPT  OF  RECEIPT  TO  CLERK. 

Cliarles  Jugnot  vs.  Eugene  Cuvillier — In  attachment — Figerous  &  Champy,  (gar- 
nishees.) Received  of  Charles  C.  Stroliecker,  Clerk  of  the  Court  of  Common  Pleas, 
$296  20,  in  full  of  moneys  paid  into  Court  by  said  Figeroux. 

CHARLES  JUGNOT. 

Charleston. 

*206]  *COPY    OF    POWER    OP    ATTORNEY. 

Know  all  men  by  these  presents,  that  I,  Eugene  Cuvillier,  late  of  Paris,  France, 
and  now  residing  in  the  city  of  New  Haven,  in  the  State  of  Connecticut,  do  hereby 
constitute  and  appoint  Monsieur  Auguste  Olin,  of  Charleston,  South  Carolina,  my 
true  and  lawful  attorney,  for  me,  and  in  iny  name,  to  receive  from  Pitray  &  Viel, 
of  said  Charleston,  a  certain  box  directed  to  me  and  marked  "E.  C,"  and  to  give 
to  the  said  Pitray  &  Viel,  when  said  box  shall  have  been  received  by  my  said 
attorney,  a  receiitt,  acquittance,  and  discharge  therefor  ;  which  receipt,  or  discharge, 
when  signed  and  delivered  l)y  said  attorney,  shall  be  a  full  discharge  to  (them) 
the  said  Pitray  &  Viel,  of  all  claims  which  I  may  have  upon  (them,)  on  account 
of  said  box,  and  the  contents  thereof.  And  I  do  hereby  declare,  that  my  said 
attorney  is  the  purchaser  of  the  said  box,  and  the  contents  thereof,  and  that  he  has 
full  power  and  authority  to  apply  the  same,  when  received  by  him,  to  his  own 
proper  use  and  benefit.  (And  whereas,  it  is  possible  that  the  said  box,  and  con- 
tents thereof,  are  dirci^ted  to  Madame  Cuvillier,  I  hereby  declare  the  said  box,  if 
so  directed,  is  the  box  intended  by  this  letter  of  attorney.)  In  testimony  whereof, 
I  have  hereunto  set  my  hand  and  seal,  at  said  city  of  New  Haven,  this  3d  day  of 
January,  A.  1).  1840. 

EUGENE  CUVILLIER,     [seal.] 

Signed  and  sealed    )  ,,r      t.    t> 

in  presence  of       J  Wm.  B.  Bristol. 

Duly  authenticated,  under  hand  and  seal  of  Wm.  B.  Bristol,  Notary  Public,  at 
New  Haven,  the  day  and  year  above  mentioned. 

(Translated.)     Received  the  within  mentioned  box,  Jan.  16,  1840. 

(Signed)  A.  OLIN. 

Charges  paid  us,  liy  Mr.  Olin,  $r)G  37  cts. 

THOS.  J.  ROGER  &  Co., 
Successors  of  Pitray,  Viel  &  Co. 

OROUNDS    OF    APPF.AL. 

1.  That  liis  iroiior  suffered  the  defendant  to  fjive  in  evidence  certain 
proceedings  in  fureiyn  attachineMt,  to  which  the  plaiulifl'  in  this  action  was  no 
party. 


*207]  OLIN    vs.    FIGEROUX    &   CHAMPY.  135 

*2.  That  his  Honor  allowed  the  deftnidant  to  jrive  in  evidence  his  own  r*0A-7 
return,  as  garnisliee,  to  the  said  writ  ot  attachment,  thereby  making  him   ' 
a  witness  in  his  own  case. 

3.  That  his  Honor  erred  in  charging  the  jiuT,  that  defendant's  payment 
of  money  into  Court,  under  order  of  the  Court,  as  garnishee  aforesaid,  although 
after  writ  served  on  them  by  present  plaintifi',  and  without  notice  to  him  of 
such  payment,  was  sufficient  to  bar  the  plaintiff  from  a  recovery. 

4.  That  his  Honor  erred  in  chavuing  the  jury,  that  the  plaintiff  was  not 
entitled  to  recover,  although  the  defendant  paid  the  money  into  Court,  and 
suffered  the  attaching  creditor  to  take  it  out  of  Court,  without  contest,  (thus 
disabling  plaintiff  from  ever  getting  it  back,)  after  writ  served  on  him  by 
plaintiff,  and  without  notice  to  plaintiff,  and  that  too,  when  the  same  attorney 
represented  both  the  attaching  creditor  and  the  garnishee. 

.5.  That  his  Honor  erred  in  charging  the  jury,  that  the  plaintiff  was  barred 
by  the  defendant's  payment  of  money  into  Court,  when  it  is  respectfully  sub- 
mitted, that  the  only  question  at  issue  was,  wiiether  the  goods  sold  were  the 
property  of  the  plaintiff,  or  of  the  absent  debtor ;  and  his  Honor  should  have 
charged  the  jury,  and  left  them  to  decide  accordingly. 

6.  That  the  verdict  was  palpably  against  law  and  evidence. 

Yeadon,  for  the  motion,  contended  that  the  attachment  offered  in  evidence  was 
not  a  bar  to  the  plaintiff's  recovery  ;  and  that  the  plaintiff  had  no  right  to  make 
himself  a  party  by  force.  Also,  that  the  power  of  attorney  was  a  bill  of  sale,  and 
the  attorney  tlie  purchaser. 

Kunhardt,  contra,  cited  3  E.  367.     Evidence  under  the  plea  of  non-assumpsit. 

Memminger,  contra  also.  Was  payment  of  money  into  Court,  by  a  third  per- 
son, a  discharge  ?  He  also  contended  that  there  was  collusion  between  plaintiff 
and  the  absent  debtor.  That  this  was  a  question  for  the  jury,  and  they  had  de- 
cided. Olin,  he  contended  further,  had  notice.  Also,  whoever  has  a  claim  against 
a  thing  attached,  should  come  in  and  establish  his  claim.  Cited  5  Johnson,  101 ; 
Sergt.  146 ;  1  Rice's  Dig.  *head,  Attach.  80  ;  3  East.  367.  The  party  has  a  r*9AQ 
remedy  over  against  the  party  receiving  it,  2  H.  Black,  407  ;  1  ih.  665,  '- 
settled  the  same  principle  ;  2  Dal.  73 ;  a  party  having  account  may  come  in  and 
claim.  He  also  contended  that  a  garnishee  was  protected  by  the  proceedings  iu 
attacliment. 

Yeadon,  in  reply,  said  the  rule  laid  down  by  the  counsel  only  extended  to  the 
absent  debtor,  and  cited  1  Bail.  193. 

Curia,  per  Evans,  J.  If  Jiignot  had  attached  a  debt  really  due  to 
Cuvillier,  there  would  be  no  doubt  that  a  payment  of  the  money  into 
Court,  and  the  delivery  of  it  to  the  plaintiff  in  attachment,  would  have 
discharged  the  defendant  from  the  payment  of  it  to  Cuvillier.  All  the 
authorities  agree  in  this,  and  this  is  the  result  of  the  case  quoted  in  the 
argument.  But  the  present  is  a  very  different  question  Here  the  plain- 
tiff claims  the  debt  as  due  to  him,  and  from  the  evidence  offered,  it  seems 
very  clear  the  goods  were  purchased  from  him.  Cuvillier  seems  to  have 
been  once  the  owner,  but  the  evidence  of  sale  to  the  plaintiff  was  pretty 
clearly  established,  unless  there  was  some  collusion  between  them  to  de- 
fraud the  creditors  of  Cuvillier.  If  there  was  so,  then  that  point  should 
have  been  submitted  to  the  jury.  The  case,  as  presented  here  is,  whether 
the  plaintiff",  Olin,  is  estopped  by  the  proceedings  in  the  case  in  attach- 
ment of  Jugnot  vs.  Cuvillier.  I  am  of  opinion  he  is  not.  There  is 
nothing  in  the  attachment  Act  which  requires  hitu  to  come  and  litigate 
his  rights  in  a  suit  to  which  he  is  not  a  party.  If  Olin  was  a  mere  agent 
to  sell  the  goods,  and  the  debt  due  for  them  was  Cuvillier's,  theu  it  might 


136  CHARLESTON,  FEBRUARY,  1841.      VOL.  I.  [*208 

have  been  attached  in  his  hands,  and  if  he  had  failed  to  assert  his  right, 
he  would  have  been  bound  by  the  record.  But  in  this  case  Jugnot  did 
not  make  him  a  garnishee,  and  he  had  only  verbal  information  that  the 
money  was  attached.  Under  our  practice  he  might,  perhaps,  have  come 
in  and  had  an  issue  to  try  the  question,  whether  the  money  due  for  the 
goods  was  his,  or  the  absent  debtor's  ;  but  I  do  not  know  of  any  legal 
principle  which  makes  it  obligatory  on  him  to  do  so.  There  is  no  such 
obligation  imposed  by  the  attachment  Act.  The  defendants  purchased 
the  goods  from  the  plaintiff.  He  sold  the  goods  as  his  own,  and  nothing 
appears  to  the  contrary,  but  that  the  debt  was  due  to  him.  The  defend- 
^  ants  have  voluntarily  involved  "''themselves  in  the  difficulty,  by  sug- 

"  -■  gesting  a  doubt  whether  the  money,  or  a  part  of  it,  might  not  belong 
to  Cuvillier ;  for,  independent  of  their  return,  as  garnishee,  there  is  not 
the  slightest  evidence  to  impugn  the  plaintiff" 's  right  to  the  money.  Their 
course  was  a  very  plain  one.  They  had  no  dealings  with  Cuvillier.  All 
they  had  to  do,  was  to  return  they  had  nothing  belonging  to  him.  But 
they  chose  to  offer  to  pay  the  money  into  Court,  and  in  consequence,  the 
money  was  paid  into  Court,  without  the  plaintiff's  knowledge  or  consent, 
and  Jugnot  has  received  it  as  Cuvilier's  money,  on  giving  his  bond  to 
repay,  if  he  should  fail  to  prosecute  his  suit  to  judgment,  or  the  absent 
debtor  should,  in  a  year  and  a  day,  discharge  himself  from  the  demand. 
By  this  course  of  proceeding,  the  plaintiff' 's  right  to  recover  his  debt  is 
not  impaired.  The  proceedings  in  attachment  do  not  estop  him  from 
demanding  and  receiving  it,  if  the  debt  is  bona  fide  his,  and  not  the 
absent  debtor's.     The  motion  for  a  new  trial  is  therefore  granted. 

Gantt,  O'Xeall,  Earle,  and  Butler,  JJ.,  concurred. 
See  2  Sp.  IIC,  390.     An. 


Galliott  and  Lefevre  ads.  Planters'  and  Mechanics'  Bank. 

One  partner,  after  the  dissohition  of  tlie  copartnership,  cannot  bind  the  other,  by 
signing  tlie  partnershii?  name,  without  express  authority ;  and  notice  through 
the  pubHc  papers,  to  the  plaintiffs,  of  such  dissolution,  is  sufficient. 

Each  renewal  of  a  note  in  bank  is  a  new  contract. 

Before  Richardson,  J.,  at  Charleston,  January  Term,  1841. 

This  was  an  action  of  assumpsit,  on  a  note  drawn  by  Sebastian  Aimar, 
dated  8 l.st  December,  LS37,  for  three  hundred  and  thirty-seven  dollars, 
with  tiie  names  of  defendants  endorsed.  It  was  in  evidence  that  a  co- 
partnership had  existed  between  the  defendants,  which  was  dissolved  on 
*210l  *''^'  ^^^^^.  ^'<^^'<^'"'^er  of  the  same  year,  before  the  *date  of  the  note  ; 
J  and  notice  of  the  dissolution,  through  the  public  papers,  reached 
the  jiliiintills.  The  endorsement  was  not  in  the  handwriting  of  either  of 
the  (lef(;ti(liin(!«,  but  was  written  by  the  wife  of  Lefevre,  he  himself  being 
unable  to  write.  There  was  no  evidence  of  any  express  authority  dele- 
gated to  her  to  endorse  for  the  firm,  even  while  it  was  in  existence.  The 
witness  on  this  point  said  he  had  seen  her  sign  notes  for  the  firm  once  or 
twice,  and  had  mentioned  it  to  Galliott.  Mr.  Morris,  a  clerk  in  the 
bank,  stated  that  this  note  had  been  discounted  in  the  bank,  and  pro- 


*210] 


GALLIOTT   &   LEFEVRE   ads.    BANK.  137 


tested  regularly  for  non-payment.  lie  believed  the  note  to  have  been  a 
renewal  of  another  note  of  the  same  drawer,  and  endorsed  by  Galliott  & 
Lefevre,  as  he  found  an  entry  of  such  a  note  on  the  books  of  the  bank, 
kept  by  his  predecessor  in  office.  Sebastian  Aimar  had  become  insolvent 
between  the  date  of  the  first  note  and  the  date  of  the  one  sued  on,  and  he 
therefore  presumed  the  bank  had  discounted  this  note  on  the  faith  of 
Galliott's  solvency. 

I  left  the  facts  to  the  jury,  charging  them,  that  unless  Mrs.  Lefevre  had 
been  authorized  to  endorse  the  present  note,  as  well  as  those  made  dui'- 
iug  the  partnership,  the  defendants  were  not  bound  by  her  endorsement. 

The  jury  found  for  the  plaintiff,  and  the  defendants'  counsel  served  me 
with  tlie  annexed  notice  of  appeal. 

GROUNDS   OF   APPEAL. 

1.  The  plaintiffs  were  not  entitled  to  recover,  because  the  co-partnership 
was  dissolved  before  the  date  of  the  note  ;  Galliot  never  assented  to,  or  author- 
ized, the  endorsement ;  and  that  plaintifis  had  no  notice  of  the  dissolution. 

2.  The  statements  of  Mr.  Morris  concerning  a  previous  note  were  not 
evidence,  because,  even  admitting  that  to  be  a  fact,  each  reneAval  discharges 
the  prior  note.  His  evidence  was  not  competent,  because  his  knowledge  on 
this  subject  was  derived  from  memoranda  kept  by  his  predecessor,  and  not 
himself,  and  which  memoranda  were  not  produced  in  evidence. 

3.  The  verdict  was  against  justice,  law,  and  evidence. 

Cooper,  for  the  motion,  cited  and  relied  upon  1  McCord,  388,  as  to  the  power  of 
partners  ;  3  McCord,  526,  was  cited  by  him  in  order  to  show  that  every  renewal  of 
a  note   formed   a  *new  contract,   and  that  this   note  being  a  renewal  of  r^^.^-iT 
another,  it  might  be  considered  as  payment.     He  contended  that  the  mem-   '-  " 
oranda  of  the  witness  who  testified  was  not  competent  evidence. 

Memminger,  contra,  contended  tliat  the  wife  of  Lefevre  had  been  allowed  to  write 
for  them.  Galliott  had  assented  to  it,  and,  therefore,  he  was  bound  by  her  act. 
This  was  a  renewal.  There  were  other  counts  in  the  declaration,  and  plaintiffs 
might  recover  on  them. 

Curia,  per  Earle,  J.  The  co-partnership  of  the  defendants  having 
been  dissolved  before  the  making  of  the  note  in  question,  and  notice 
having  reached  the  plaintiff,  neither  of  them  could  bind  the  other  by 
signing  the  partnership  name,  without  express  authority.  It  does  not 
vary  tlie  case  at  all,  that  the  note  sued  on  was  a  renewal  of  one  endorsed 
and  discounted  before  the  dissolution.  It  is  well  settled  that  each  re- 
newal is  a  new  contract.  If  Lefevre  himself  could  not  bind  Galliott,  by 
signing  the  partnership  name,  it  would  be  very  strange  if  a  third  person, 
although  the  wife  of  one  of  them,  could  do  it  without  authority  from 
either.  The  revocation  of  all  that  she  had  previously  done,  was  cooiplete 
by  the  act  of  dissolution,  and  there  is  no  proof  of  any  given  to  her  after- 
wards, either  by  Galliott  or  Lefevre.  The  plaintifl",  therefore  cannot 
recover  on  the  note.  It  is  equally  clear  that  he  cannot  recover  on  the 
money  counts.  To  say  that  a  note  discounted  by  the  maker,  is  evidence 
of  money  lent  to  the  endorser,  is  a  novelty.  Such  a  proposition  is 
opposed  to  the  common  usage  and  general  experience  of  men,  and  the 
defendants  could  only  be  charged  upon  clear  and  explicit  proof,  that  in 
fact,  the  note  was  discounted  for  their  beneflt,  and  that  they  received  the 
money.     Motion  granted. 

The  whole  Court  concurred. 

See  Post,  298  ;  6  Rich.  219  ;  Meggitt  vs.  Finney  ^-  Jones,  4  Strob.  220.     An. 


138  CHARLESTON,  FEBRUARY,  1841.      VOL.  I.  [*212 


*2r2]   *The  Administrators  ofWm.  Patton  vs.  John  MAGRATH.(a) 

The  admissions  by  the  defendant,  within  two  years  from  the  commencement  of 
the  action,  that  the  cotton  of  the  plaintiff's  intestate  was  shipped  on  board  of 
liis  steamer,  that  it  had  been  destroyed  by  fire,  and  that  the  controversy  as  to 
his  legal  liability  was  still  pending,  was  held  not  to  be  a  suflficient  admission  of 
his  liability,  onwhich  the  law  would  raise  an  implied  promise. 

The  cause  of  action  in  this  case  accrued  on  the  3d  December,  1832,  and  suit  was 
brought  by  the  plaintitf's  intestate  in  May,  1833,  and  abated,  before  it  was  tried, 
by  his  death.  In  March,  1835,  suit  was  renewed  by  the  plaintiffs,  and  at  Feb- 
ruary Term,  1839,  of  the  Appeal  Court,  a  nonsuit  was  ordered.  In  April  follow- 
ing, this  suit  was  commenced  :  Held  that  the  statute  of  limitations  was  a  bar  to 
plaintitl's  recovery.  That  this  siiit  could  not  be  connected  with  either  of  the 
former  cases. 

Before  O'Xeall,  J.,  at  Charleston,  May  Term,  1840. 

This  was  an  action  against  the  defendant,  as  a  common  carrier,  for  the 
value  of  fourteen  bales  of  cotton,  shipped  on  board  the  steamer  Augusta, 
Captain  Brooks,  whereof  the  defendant  was,  at  the  time,  owner.  The 
cotton  was  shipped  at  Augusta,  and  destined  for  Charleston,  but  was 
burned  on  the  3rd  of  December,  1832,  at  Steele  Creek,  on  the  Savannah 
river,  on  board  one  of  the  lighters  accompanyiug  and  in  the  employment 
of  the  steamer. 

The  bill  of  lading  was  dated  30th  November,  1832.  After  some  inter- 
val, the  defendant  was  called  on  to  pay  for  the  cotton  as  a  common 
carrier,  and  on  his  refusal,  a  suit  was  instituted  at  May  Term,  1833. 
Before  this  suit  was  tried  William  Patton  died,  and  administration  was 
taken  out  on  his  estate  by  the  plaintiffs.  On  the  Ith  March,  1835, 
plaintiffs'  attorney  was  directed  to  renew  the  action,  and  on  the  18th 
March,  1835,  the  defendant  accepted  service,  and  an  appearance  was 
entered  by  his  attorneys,  at  the  request  of  the  plaintiffs'  attorney.  The 
writ  was  served  on  Captain  Brooks,  (who  was  joined  in  the  same  action 
with  the  defendant.)  On  the  22nd  January,  1836,  the  case  was  ordered 
for  judgment  against  Captain  Brooks,  by  default.  The  defendant, 
Magrath,  i)leaded  the  general  issue.  On  the  15th  of  January,  1838,  a 
verdict  was  rendered  for  the  defendant,  which  was,  at  February  Term  of 
the  Court  of  Appeals,  set  aside  and  a  new  trial  ordered.  On  the  18th 
January,  1830,  the  case  was  again  tried,  and  a  verdict  of  seven  hundred 
and  thirty-four  dollars  and  fourteen  cents,  found  for  the  plaintiffs.  On 
^213-1  the  appeal,  the  Court  of  Appeals,  at  February  Term,  1839, 
( llice's  Rep.  102,)  ordered  a  non-suit,  on  the  ground  tliat  the 
defendant,  as  owner,  and  Captain  Brooks,  as  master,  were  improperly 
Joined  in  the  same  action.  On  the  20th  of  April,  1839,  an  action  was 
commenced  against  the  defendant,  and  he  accepted  service,  or  by  his 
attorney  entered  an  appearcnce  at  the  request  of  the  plaintiffs'  attorney. 
To  this  action  he  pleaded  the  general  issue,  and  the  statute  of  limitations. 

Mr.  William  Patton,  a  witness  for  the  plaintiffs,  proved,  that  within 
the  last  two  years,  or  about  two  years  ago,  he  heard  the  defendant  speak 
of  this  claim,  as  an  unadjusted  one.  lie  admitted  that  the  cotton 
was  shipped  on  board  liis  steamer,  and  was  burned  on  board  the  lighter. 

('0  S.  C.  before;  Rice,  102;  Dud.  159. 


*213]        ADMRS.  OF  PATTON  VS.    MAGRATH.  139 

He  said  the  defendant  and  other  steamboat  owners  applied  to  the  Legis- 
lature to  exempt  them  from  liability  for  loss  arising  from  fire. 

After  the  plaintilfs  had  stated  they  had  no  further  proof  to  offer,  I  said 
to  the  plaintiffs' attorney,  Colonel  Hunt,  that  in  my  judgment,  the  statute 
of  limitations  was  an  insuperable  bar  to  his  recovery,  and  advised  him  to 
submit  to  a  nonsuit,  with  leave  to  move  the  Court  of  Appeals  to  set  it 
aside.     This  was  accordingly  done. 

GROUNDS    OP    APPEAL. 

1.  Because,  it  is  respectfully  submitted,  the  Court  ought  to  have  instructed 
the  jury,  that  the  admissiou  by  the  defendant,  within  two  years  from  the  cotn- 
niencement  of  the  action,  that  the  cotton  of  the  phiintifl''s  intestate  w;is  shipped 
on  board  of  bis  steamer,  and  had  been  destroyed  by  fire,  and  that  the  contro- 
versy as  to  his  legal  liability  was  still  pending,  was  a  sufficient  admission  of  the 
state  of  facts  on  which  the  law  will  raise  a  promise. 

2.  Because  the  defendant,  having  been  sued  by  the  deceased,  in  his  lifetime, 
and  by  his  administrators  since  his  death,  and  having  been  heard  in  his  defence, 
he  has  always  been  aware  of  the  existence  of  the  demand,  and  does  not  bring 
himself  within  the  morality  or  equity  of  the  statute,  and  the  mere  informality 
in  the  suit  ought  not  to  screen  him  from  a  legal  liability. 

3.  Because  the  acknowledgment  was  made  before  the  statuary  bar  was 
complete,  about  two  years  before  the  trial,  and  this  was  sufficient  to  take  the 
case  out  of  the  statute. 

*Curia,  x>er  O'Neall,  J.  The  cause  of  action  in  this  case  ac-  r^gi  < 
crued  on  the  3rd  December,  1832,  when  the  cotton  was  burned.  ^ 
The  suit  which  was  instituted  in  William  Patton's  life  time,  abated  by  his 
death.  That  case  might  have  been  connected  with  the  first  suit  brought 
by  the  administrators,  so  as  to  have  prevented  the  bar  of  the  statute 
against  it.  But  this  last  case  was  nonsuited,  and  the  present  case  can 
be  connected  with  neither.  The  plaintiffs  are  therefore  barred,  unless 
William  Patton's  testimony  could  save  them.  It  cannot  have  that  effect, 
for  two  reasons,  1st.  If  it  is  any  sort  of  admission  of  the  plaintiffs'  claim, 
it  is  the  slightest  conceivable  one.  At  the  time  it  was  made,  two  years 
ago,  (1838,)  the  statute  had  run  out,  and  such  an  admission  would  not  be 
evidence  to  prevent  the  bar  of  the  statute  from  precluding  the  recovery  of 
a  debt.  2nd.  This  case  is  an  action  ex  contractu,  {ov  i\iQ  recovery  of 
damages,  where  the  defendant  always  resisted  his  liability  to  pay  them. 
It  is  therefore  idle  to  suppose  that  his  words  to  Mr.  Patton  admitted  the 
legal  liability  from  which  a  promise  would  be  implied.  They  meant  that 
the  litigation  between  him  and  these  plaintiffs  was  undecided.  There  is 
nothing  in  this  to  remove  the  bar  of  the  statute. 

The  motion  is  dismissed. 

The  whole  court  concurred. 

Hunt,  for  the  motion.     Magrath,  contra. 

See  2  Sp.  485  ;  3  Hill,  214  ;  1  Bail.  542.     An. 


140  CHARLESTON,  FEBRUARY,  1841.      VOL.  I.  [*215 


^.-)',rn  *TirE  State,  ex  relatione  W.  C.  Oakley  et  al.  us.  Brig- 
"^^     -1  adier-General  Edwards  et  al. 

Where  a  detachment  of  the  Militia  of  the  fourth  Brigade,  South  Carolina  Militia, 
had  been  detailed,  (by  the  Brig. -Gen.  of  the  Brigade,)  as  a  fire-guard,  in  the 
City  of  Charleston,  under  the  Act  of  1829,  and  before  their  term  of  service  as 
such  guard  had  expired,  the  officers  and  sergeants  belonging  to  tliis  detach- 
ment, together  with  all  the  officers,  &c.,  composing  the  said  Brigade,  had  been 
ordered  by  the  Brigadier,  under  orders  from  the  Governor  of  the  State,  to  en- 
camp and  perform  encampment  duty — It  was  held  that  the  fire-guard  and  en- 
campment duties  did  not  conflict ;  and  a  prohibition  to  restrain  the  collection  of 
fines  imposed  by  the  court  martial  against  the  relators,  for  a  neglect  of  the  latter 
duty,  was  refused. 

Before  Earle,  J.,  at  Charleston,  May  Term,  1841. 

This  was  a  sngf^estion  for  a  prohibition  to  restrain  the  collection  of 
certain  fines  imposed  on  the  relators  by  a  court  martial.  By  an  Act  of 
1829, (o)  the  Brigadier-General  or  other  officer  commanding  the  fourth 
brigade,  in  order  to  prevent  the  confusion  which  may  arise  from  too 
many  men  being  under  arms  when  fire  shall  break  out  in  the  city  of 
Charleston,  is  authorized  to  fix  the  number  of  men  necessary  to  be  under 
arms  in  such  cases,  and  to  make  regulations  by  which  a  certain  portion 
only  of  the  militia  of  Charleston  shall  be  required,  for  the  period  of  three 
months,  to  hold  themselves  in  readiness  to  parade  in  case  of  alarm  from 
fire;  and  the  said  portion  of  militia  shall  be  commanded  by  a  field  officer, 
detailed  according  to  the  order  of  officers,  &c.  And  the  Act  proceeds  to 
impose  upon  defaulters,  in  case  of  alarm,  the  same  fines  that  are  imposed 
on  persons  making  default  at  regimental  musters.  General  Edwards 
being  in  command  of  the  fourth  brigade,  in  January,  1839,  according  to 
the  provisions  of  the  Act,  by  general  orders,  detailed  four  companies 
from  the  Ifith  and  IJth  regiments,  under  the  command  of  Major  Oakley, 
and  the  other  relators,  to  compose  the  fire-guard  for  three  months  from 
and  after  the  first  day  of  February,  1839,  and  they  were  accordingly 
organized  and  paraded  as  such.  On  the  6th  of  March,  General  Edwards, 
in  obedience  to  the  general  orders  of  the  Commander  in-Chief,  directed 
*2161  ""  encampment  of  the  officers  and  sergeants  of  the  *fourth  brigade 
"  -'  to  l;e  held  at  Morrison's  farm,  seven  miles  from  the  city,  on  the 
8th  of  April,  for  five  days.  On  the  2Tth  of  March,  the  Commander-in- 
Chief,  by  general  order,  excused  the  officers  and  sergeants  of  the  Charles- 
ton light  dragoons,  from  attending  the  encampment  at  Accabee,  and 
directed  that  the  said  corps  of  light  dragoons  should  be  officially  detailed 
by  the  Brigiidier-General,  to  serve  as  a  fire-guard  ad  interim;  and  the 
Brigadier-General,  on  the  1st  of  April,  issued  his  order  to  that  efl'ect, 
and  tliereby  also  dissolved  the  fire-guard  under  the  command  of  Major 
Oakley,  and  ordered  the  officers  and  sergeants  composing  the  same  to 
attend  the  encampment  at  Accabee.  This  order  Major  O'akley  and  the 
other  relators,  officers  in  command  of  the  fire-guard,  did  not  obey,  con- 
ceiving themselves  already  detailed  upon  a  special  duty  under  a  law  of 
the  State,  which  exempts  them  for  the  time  from  the  performance  of  the 
duty  required  of  them.     They  did  not  attend  the  encampment,  and  were 

(«)  6  Stat.  305.     An. 


*216]  Ex  rel,  oakley  et  al.  141 

afterward  fined  by  a  court  martial  for  their  default.     They  then  filed  this 
sup:,c:estion  for  a  prohibition  to  restrain  the  collection  of  the  fine. 

The  cause  was  heard  upon  the  suggestion  and  answer,  before  Mr  Jus- 
tice Earle,  at  the  May  Term.  1839,  who  pronounced  the  following  judg- 
ment, refusing  the  writ  of  prohibition  prayed  for  : 

This  application  is  made  on  the  ground  that  the  fire-guard  for  the  city 
of  Charleston,  having  been  detailed  in  January,  1T39,  for  three  months 
from  the  1st  of  February,  neither  the  Brigadier-General  nor  the  Gover- 
nor had,  for  that  time,  any  further  command  or  control  over  them  ;  but 
that  they  were  entirely  withdrawn  and  set  apart  from  the  general  body 
of  the  militia,  and  from  the  jurisdiction  of  the  military  courts.     The  last 
Act  of  1829,  on  the  subject  of  the  fire-guard,  enacts  that  "the  Brigadier- 
General  be,  and  he  is  hereby  authorized  to  fix  the  number  of  men  neces- 
sary to  be  under  arms,  in  such  cases,  and  to  make  regulations  by  which  a 
certain  portion  only  of  the  militia  shall  be  required,  for  the  period  of 
three  months,  to  hold  themselves  in  readiness,"  &c.     And  provides  for 
fines,  courts  martial,  reporting  defaulters,  and  ordinary  parades;  and  the 
8th  section  is  in  these  words:  "Nothing  herein  contained  shall  be  con- 
strued so  as  to  exempt  that  portion  of  the  militia  *of  Charleston,  r>i<.)i  ^ 
which  shall  compose  the  fire-guard,  from  the  performance  of  ordi-  '- 
nary  militia  duty."     This  is  enough  to  show  that  it  was  never  intended 
to  exempt  the  fire-guard  from  the  operation  of  the  militia  laws.     In  pur- 
suance of  the  Act,  the  Brigadier-General  designates  certain  corps  to 
perform  a  particular  duty,  in  an  emergency,  which  may  happen  ;  but 
which  is  not  certain  to  happen  during  the  whole  term  for  which  they  are 
thus  set  apart.     This  affords  no  reason  why  they  should  not  perform  the 
other  ordinary  duties  of  the  militia,  or  that  they  should  be  released  from 
the  obligations  to  obey  the  lawful  commands  of  their  superior  officers. 
Independently  of  the  subsequent  Act,  appointing  encampments,  I  should 
consider  the  fire-guard,  thus  detailed,  as  being  a  detachment  for  a  par- 
ticular service,  under  orders;  that  the  same  commanding  officer,  who  sent 
them  on  detachment,  may  at  any  time,  by  a  subsequent  order,  recall 
them,  and  send  other  troops  in  their  stead ;  and  that  the  Commander-in- 
Chief,  of  necessity,  from  the  very  nature  of  his  position,  has  the  same 
authority.     The  Act  of  1829  confers  no  new  power  on  the  Brigadier- 
General.     In  cases  of  alarm  from  fire,  or  other  great  unexpected  danger, 
I  apprehend,  he  would  have  had  authority  to  call  out  the  militia,  or  any 
part  of  it,  to  preserve  the  public  tranquillity  and  safety.     It  auihorizes 
him  to  make  regulations  for  detaching  a  certain  portion  only,  (leaving 
the  number  and  description  to  him,)  for  an  extended  time;  he  may,  in  his 
discretion,  detach  and  recall,  as  the  public  interest  may  require.     But  the 
Act^of  1833  makes  it  the  duty  of  the  Brigadier-General,  under  the  direc- 
tion of  the  Commander-in-Chief,  once  in  two  years,  to  assemble  the  com- 
missioned officers  of  his  brigade,  at  some  convenient  place  within  the 
brigade,  to  be  encamped  for  five  days,  for  instruction  and  exercise.    Here 
is  no  exception  in  favor  of  the  fire-guard;  nothing  which  exempts  the 
commissioned  officers  composing  it  from  being  summoned  to  attend  the 
encampment ;  especially  if  the  order  by  which  the  guard  was  organized, 
be  expressly  rescinded,  and  the  guard  dissolved.     Nor  is  there  any  thing 
in  the  nature  of  their  office  and  duty  which  makes  such  a  proceeding  at 


U2  CHARLESTON,  FEBRUARY,  1841.      VOL.  I.  [*217 

all  inconvenient  to  them,  or  incompatible  with  the  public  interest.  It 
would,  of  course,  be  the  duty  of  the  Brigadier-General,  when  dissolving 
one  guard,  to  enable  it  to  attend  the  encampment,  to  organize  another 
*9i  Q-|  to  attend  in  its  stead  ;  a  duty  *  which  he  would  be  highly  culpable 
J  if  he  omitted  to  perform.  The  fire-guard  is  expressly  declared 
not  to  be  exempt  from  ordinary  militia  duty.  I  understand,  by  ordinary 
duty,  any  parade  or  muster  for  review,  inspection,  exercise  or  instruction, 
prescribed  by  law,  and  recurring  periodically.  I  consider  an  encamp- 
ment an  ordinary  militia  duty.  Extraordinary  duty,  is  such  as  arises  on 
occasion  of  sudden  emergency  or  alarm  ;  as  invasion,  insurrection  and 
the  like,  when  recourse  is  had  to  the  extraordinary  powers  vested  in  com- 
manding officers.  Yery  many  persons,  and  some  classes  of  persons,  are 
liable  to  serve  on  these  last  occasions  of  extraordinary  duty,  who  are 
exempt  from  ordinary  duty.  If  to  attend  an  encampment  be  an  ordinary 
duty,  then,  by  law,  the  fire-guard  is  not  exempt.  If  it  be  an  extraordinary 
duty,  then  the  special  commands  of  the  executive  were  of  such  authority 
as  to  require  their  obedience. 

If  the  officers  had  attended  the  encampment,  and  had  been  brought  to 
a  court-martial,  for  not  attending  a  parade  of  the  fire-guard,  in  their 
absence,  can  it  be  doubted  that  their  excuse  would  have  been  sufficient  ? 
And  here,  I  may  ask  why  they  did  not  attend  before  the  court  martial, 
and  render  their  excuse  for  not  attending  the  encampment.  After  refus- 
ing to  obey  the  orders  of  the  Commander-in-Chief,  and  of  the  Brigadier- 
General,  and  evincing  such  confidence  in  their  own  judgment  as  to  refuse 
also  to  appear  before  the  court  martial,  to  justify  themselves,  they  come 
with  an  ill-grace  before  the  court  to  ask  its  interposition.  I  cannot  but 
allude  here,  in  terms  of  strong  reprehension,  to  the  frequency  with  which 
this  course  is  adopted,  in  regard  to  all  inferior  trilninals  having  limited 
judicial  powers.  A  man  omits  to  perform  some  public  duty  required  of 
him,  as  to  work  on  the  roads,  or  attend  a  muster,  on  some  legal  grounds 
affording  a  pretext ;  when  summoned  to  answer  for  it,  before  the  proper 
authority,  he  refuses  to  attend,  and  when  fined,  as  he  ought  to  be,  he 
straightway  goes  to  a  lawyer,  and  brings  his  complaint  before  the  Court. 
I  confess  I  have  no  symjjathy  for  those  who  neither  perform  their  duty 
nor  have  the  courtesy  to  excuse  themselves  for  the  omission  ;  nor  will  I 
convert  tlie  power  of  this  Court,  to  grant  writs  of  prohibition,  into  a 
general  disi)ensing  power  in  favor  of  the  negligent  and  the  wilful.  It  is 
very  clear  to  my  mind,  that  the  relators  were  subject  to  the  jurisdiction  of 
*210l  '^''^'  ^*^"^"t  martial,  as  *was  also  the  cause  of  the  complaint  against 
them.  That  is  enough  to  induce  me  to  refuse  their  motion.  I 
have,  however,  as  little  doubt  that  they  were  liable  to  perform  the  duty 
required  of  them;  that  the  orders  of  the  Major-General  and  the  Com- 
mander-in  Chief  were  no  violation  of  the  law,  and  were  strictly  conform- 
able to  military  usage ;  and  that  it  was  the  duty  of  the  relators  to  obey. 

The  motion  for  a  new  writ  of  prohiljiiion  is  refused. 

This  judgment  the  relators  now  move  the  Court  of  Appeals  to  reverse. 

ORorNDS   OF   APPEAL. 

1.  'I'lirit  firc-puard  and  encampment  duties  are  conflicting  duties,  and  the 
persons  liai^lc  tu  do  both  at  llio  same  time,  have  the  right  of  election  which  to 
Ijcrform. 


*219]  Ex  reh  oakley  et  al.  143 

2.  That  tlic  org-anization  of  tlie  fire-guard  is  a  privilege  of  the  city  of  Char- 
leston, to  secure  her  against  internal  commotions  in  cases  of  fire,  guarantied  to 
her  by  Act  of  the  Legislature,  and  neither  the  Brigadier-General  nor  the 
Governor  has  the  right  to  deprive  her  of  it. 

Yeadon,  for  the  motion,  contended  that  the  fire-guard  belongs  to  the  citj  of 
Charleston,  and  tliat  the  interests  of  the  city  are  involved,  and  that  no  power  but 
the  Legislature  could  deprive  her  of  her  privilege.  He  cited  Acts  of  A.,  1829, 
(Mill.  Laws,  122,  2d  and  3d  sec.)  The  Legislature  recognized  the  necessity  of 
having  this  guard.  He  said  the  city  was  liable  to  incendiarism  and  an  influx  of 
strangers,  without  this  guard  ;  and  argued  further  that  this  fire-guard  was  com- 
pletely detached  from  the  militia  of  the  State,  during  the  three  months  service 
required  by  the  Act.     Cited  in  the  course  of  argument,  Condy's  Dig.,  14G. 

Northrop,  contra,  cited  Act,  1833 — army  regulations.  He  contended  that  the 
jurisdiction  of  a  military  court  was  exclusive.  The  militia  are  under  the  command 
of  the  Governor.  He  has  the  right  to  demand  their  duty  as  he  pleases,  unless  he 
is  restrained  by  law  or  there  is  some  exception.  The  Brigadier  is  made  the  officer 
commanding  Charleston,  so  far  as  a  fire-guard  is  concerned,  and  he  had  the  right 
of  regulating  the  detail. 

*  Curia,  2~)er  Earle,  J.  The  earnestness  with  wliich  the  r^-ggn 
motion  has  been  urged  upon  this  Court,  has  induced  me  to  recon-  L  """ 
sider  the  grounds  taken  in  argument,  botli  here  and  in  the  Court  below. 
And  I  confess  myself  still  unsatisfied  with  the  reasoning  by  which  it  is 
attempted  to  establish  the  claim  of  the  relators,  to  be  exempt  from  the 
operation  of  a  law  for  the  discipline  of  the  militia,  which  makes  no  excep- 
tion in  their  favor ;  and  to  be  released  from  the  obligation  of  obedience 
to  the  orders  of  their  superior  officers,  and  of  the  Commander-in-Chief. 
Obedience  is  the  first  duty  of  a  soldier  ;  without  it,  that  subordination 
which  is  essential  to  the  effective  operations  of  an  armed  force,  cannot  be 
obtained  or  preserved.  It  would  be  very  injurious  to  the  organization 
and  discipline  of  the  militia,  if  the  civil  courts  were  habitually  to  interfere 
with  the  jurisdiction  of  and  decisions  of  courts  martial,  in  cases  where  they 
may  lawfully  take  cognizance  of  the  persons  and  subject  matter.  Such, 
in  the  oi)inion  of  the  majority  of  the  Court,  was  the  case  of  the  relators, 
and  we  liave  striven,  in  vain,  to  perceive  the  force  of  their  claim  to  an 
absolute  exemption.  In  the  view  which  the  Court  has  taken  of  the  sub- 
ject, it  was  not  a  case  of  conflicting  duties.  It  was  the  duty  of  the  rela- 
tors to  obey  the  last  orders  of  their  superiors  in  command,  by  whose  order 
they  had,  in  the  first  instance,  been  detailed  for  a  particular  service.  They 
were  expressly  recalled  from  that  service,  and  another  corps  detailed  in 
their  stead.  These  orders  were  surely  within  the  competent  authority  of 
the  Brigadier-General  and  Coiuraander-in-Chief.  There  was  then  no 
conflicting  duty.  If  it  had  been  a  case  of  that  kind,  it  would  have  fur- 
nished no  ground  for  prohibition,  as  a  case  of  exemption  from  the  juris- 
diction of  a  court  martial.  Both  the  supposed  duties  were  under  the 
orders  of  the  same  superior  officer,  and  a  default  in  the  ]ierformance  of 
either  would  have  brought  the  relators  before  the  same  tribunal.  What 
they  claim  as  an  exemption  was  merely  matter  of  excuse,  to  be  considered 
by  the  court  martial.  Can  it  lie  supposed  that  after  the  order  dissolving 
the  fire-guard,  and  requiring  them  to  attend  the  encampment,  tliey  could 
have  been  brought  to  trial  for  omitting  to  attend  a  parade  as  a  fire-guard, 
or  that  the  last  order  would  not  have  been  a  valid  excuse  ? 

To  dispose  of  the  whole  question,  it  is  only  necessary  to  inquire,  had 


141  CHARLESTON,  FEBRUARY,  1841.      VOL.  I.  [*220 

*09i-i  ^^^^  ^°"''''  "^^^^'^^  jurisdiction  of  the  persons  and  *tlie  subject 
'^'"'  -I  matter?  and  it  is  obvious  that  it  had.  The  relators  are  militui 
officers  of  the  fourtli  brij^'ade,  liable  to  be  tried  for  any  default  of  militia 
duty  within  it,  and  the  charge  was  a  failure  to  attend  an  encampment  of 
the"officers  of  that  brigade,  in  obedience  to  the  orders  of  the  Commander- 
in-Chief.  The  persons  and  the  subject  matter  were  therefore  properly 
and  exclusively  within  the  cognizance  of  the  court  martial.  Not  only 
does  the  Act  of  1829,  which  requires  the  guard  to  be  detailed,  expressly 
declare  that  they  shall  not  be  exempt  from  the  performance  of  ordinary 
militia  duty,  but  the  Act  of  1833, (a)  providing  for  brigade  encampments, 
makes  no  exception  in  their  favor,  and  from  the  generality  of  its  terms 
necessarily  includes  them.  Tliis  Court,  therefore,  will  not  undertake  to 
review  the  decision  of  a  competent  tribunal  on  a  sulyect  within  its  pecu- 
liar jurisdiction  ;  and  there  is  no  ground  to  interfere  by  prohibition.  A 
majority  of  the  Court  concur  in  the  reasoning  and  conclusions  of  the 
Circuit  Court,  and  the  motion  to  reverse  its  judgment  is  refused. 

RicnARDSON,  O'Neall,  Evans,  and  Butler,  JJ.,  concurred.  Gantt, 
J.,  dissented. 

KoTE. — As  the  judgment  of  the  Circuit  seems  to  impute  Uame  to  the  rehitors 
for  not  attending  personally  before  the  court  martial  to  plead  their  exemption,  or 
render  it  as  an  excuse,  it  is  proper  to  add  that,  for  this  omission,  they  had  the 
sanction  of  the  late  Mr.  Justice  Bay,  who  had,  on  a  former  occasion,  held  the 
guard  legally  exempt  from  such  duty,  and  had  granted  a  prohibition.  That  was 
the  reason  for  their  not  attending  the  court  martial. 


*222]  Edward  McKenzie  vs.  Charles  E.  Chovin. 

The  Boards  of  Commissioners  of  Roads  represent  the  people  of  the  district  or 
parish  for  which  they  are  appointed,  and  are  clothed  by  law  with  a  certain 
autliority  to  act  for  the  public.  They  are  not,  however,  a  corporatioti,  and  have 
no  corporate  funds ;  consequently  they  are  exempt  from  private  actions  for 
neglect  of  duty. 

A  single  Commissioner  is  not  liable  for  damages,  in  a  private  action,  for  an  injury 
wliicli  may  have  been  tho  result  of  want  of  repairs  in  the  roads,  &c.,  in  his 
particular  section. 

Before  Gantt,  J.,  at  Coosawhatchie,  Spring  Term,  1840. 

This  was  an  action  on  the  case,  brought  by  the  plaintiff  for  damage 
sustained  through  injuries  done  to  his  horse  on  the  public  road,  of  which 
the  defeinlunt  was  commissioner,  through  the  alleged  neglect  of  the 
defendant  to  keep  the  road  in  repair. 

The  defendant  demuri'ed  generally  ;  and  on  argument,  I  sustained  the 
demurrer,  on  the  ground  that  the  case  of  Young  vs.  The  Commissioners 
of  ilic  Uoadx,  rci)orted  in  2d  N.  <fe  McCord,  settles  the  law  of  the  land 
as  to  the  liability  of  commissioners  in  private  actions.  The  plaintiff 
thereu[)on  served  me  with  a  notice  of  a  motion  to  set  aside  the  judgment 
ou  demurrer,  upon  the  annexed  grounds. 

{a)  8  Stat.,  572,  §  2(;.     An. 


^222J 


M'KENZIE   vs.   CHOYIN.  145 


GROUNDS    OF    APPEAL. 

1.  Because,  under  the  pleadings,  the  judgment  should  have  been  for  the 
plaintiff. 

2.  Because  the  decision  was  contrary  to  law. 

Iltitson,  for  the  motion,  cited  2  N.  &  McC,  537,  Young  vs.  The  Commissioners  oj 
the  Roads,  and  said  that  that  case  was  decided  on  the  authority  of  Russell  vs.  The 
Men  of  Dover,  2  T.  R.,  067,  but  contended  that  the  Court,  in  the  decision  of  the 
case  of  Young  vs.  The  Commissioners,  had  misstated  tlie  point  decided  in  the  case 
of  Russell  vs.  The  Men  of  Dover.  (He  argued  that  from  the  authorityo  f  the  English 
cases,  this  action  might  be  sustained,  and  the  defendant  be  compelled  to  pay  for 
the  injury  which  the  plaintiff  had  sustained,  the  result  of  his  negligence.  He 
cited  furtlier,  2  Brev.  Rep.,  293;  Acts  of  Assembly,  1828,  p.  32.  Under  this 
authority,  a  single  commissioner*  of  roads  is  iiable  for  damage  sustained  on  rxQoq 
his  section.  Common  justice  sustained  the  position  that  a  singie  commis-  '- 
sioner  was  liable  in  this  form  of  action.  The  penalty  of  fifty  dollars  would  not 
reimburse  an  individual  for  his  loss.  This  was  a  penalty,  of  which  he  could  receive 
nothing.  Sending  the  loser  of  property  to  the  indictment  was  a  denial  of  justice.  A 
planter  of  wealth  who  is  commissioner  of  roads,  and  perhaps  whose  'hands  alone 
keep  the  road  in  repair,  would  prefer  to  pay  the  penalty  to  lose  the  work  of  his 
hands  for  the  time  he  would  be  engaged  in  repairing  the  road. 

Allston,  contra. 

Curia,  per  Earle,  J.  The  Act  of  1825, (a)  which  requires  a  division 
of  the  roads  among  the  commissioners,  makes  each  of  them  responsible 
for  those  within  the  division  assigned  to  him,  and  subjects  him  to  the 
same  penalties  that  the  entire  board  was  subject  to  before,  and  renders 
him  liable  to  be  proceeded  against  in  the  same  manner.  The  question 
made  here,  formerly  arose  in  Young  vs.  The  Commissiorifrs,  (2  N.  & 
McC.  537,)  which  was  an  action  on  the  case,  for  an  injury  done  to  the 
plaintiff's  wagon  and  horses,  sustained  by  the  breaking  of  an  insufficient 
bridge  ;  and  it  was  held  that  the  action  could  not  be  maintained.  The 
grounds  upon  which  the  decision  is  put  in  that  case,  are  unsatisfactory 
and  very  briefly  considered,  and  the  case  of  Russell  vs.  The  Men  of 
Devon,  (2  T.  R.,  667,)  mainly  relied  on,  does  not  seem  to  have  been 
very  accurately  examined.  That  such  a  precedent,  if  allowed,  would  lead 
to  an  infmity  of  actions,  was  assigned  by  Lord  Kenyon,  as  a  reason  of 
some  weight  for  not  incorporating  into  the  law  what  was  regarded  as  a 
new  principle.  But  it  was  held  that  such  an  action  would  not  lie  against 
the  county,  as  it  was  not  a  corporation,  and  had  no  corporate  funds,  out 
of  which  satisfaction  could  be  made.  If  damages  were  recovered,  they 
must  be  levied  on  one  or  two  individuals,  who  would  have  no  means  of 
reimbursing  themselves,  except  by  bringing  separate  actions  against  each 
individual  of  the  county,  for  his  proportion,  which  would  be  intolerable; 
and  a  case  is  cited  from  Bro.  Abr.  as  authority  for  the  position  that,  in 
such  case,  an  action  will  not  lie  for  an  individual. 

*Here,  as  in  England,  the  public  roads  and  bridges  are  required  r^cy^i 
to  be  kept  in  repair  by  the  labor  and  at  the  expense  of  the  people  ^  "'"' 
of  each  district  or  parish,  as  the  case  may  be  ;  and  in  the  absence  of  a 
board  of  commissioners,  there  would  be  the  same  reason  for  holding  the 
people  of  each  district  or  parish  liable  to  be  sued,  that  was  urged  in 
Russell  vs.  The  Men  of  Devon,  and  there  would  be  the  same  conclusive 
argument  against  their  liability.     The  board  of  commissioners  represent 

(a)  9  Stat.  558.     An. 
YOL.  I.— 11 


146  CHARLESTON,  FEBRUARY,  1841.      YOL.  I.  [*224: 

the  people  of  the  district  or  parish  for  which  they  are  appointed,  and  are 
clothed  by  law  with  a  certain  authority  to  act  for  the  public.  They  are 
not  a  corporation,  and  have  no  corporate  funds  ;  nor,  since  the  Act  of 
1825,  has  the  individual  commissioner  charged  with  the  superintendence 
of  a  particular  road  division.  The  duty  of  keeping  the  roads  and  bridges 
in  repair  is  prescribed  and  regulated  by  the  statute,  a  duty  imposed  on 
the  commissioners,  under  a  penalty  for  refusing  to  serve,  as  well  as  for 
not  repairing,  recoverable  by  indictment ;  and  it  would  be  against  every 
principle  of  justice  and  right,  to  hold  them  responsible,  out  of  their 
private  estates,  for  every  injury  that  an  individual  may  sustain,  as  well  as 
liable  to  be  indicted  for  every  neglect  of  duty  ;  to  compel  them  to  serve, 
and  then  subject  them  to  a  liability,  from  which  their  constituents  and 
employers  are  exempt.  We  cannot  suppose  that  such  was  the  intention 
of  the  Legislature.  There  are  cases  in  which  an  individual  or  corporation 
may  be  bound  to  repair  a  bridge  or  road,  by  reason  of  the  grant  of  a  toll. 
The  obligation  to  repair,  with  ordinary  diligence,  is  a  condition  of  the 
grant,  and  as  a  compensation  is  received  in  every  instance,  for  tlie  use, 
whosoever  sustains  an  injury  from  the  want  of  repair,  may  maintain  an 
action.  But  it  is  otherwise  with  the  commissioners  of  roads,  and  on 
principle,  as  well  as  authority,  we  conceive  that  this  action  will  not  lie. 
The  motion  to  reverse  the  judgment  of  the  Circuit  Court  is  refused. 

The  whole  Court  concurred. 

See  1  Rich.  345  ;  1  Sp.  219 ;  2  Sp.  553.     An. 


*225]  *T.  Gaillard  vs.  Y.  Le  Seigneur. 

The  Same  vs.  E.  Le  Roy  and  IS.  Le  Roy. 

A  note  given  for  usurious  interest,  by  the  Acts  of  1777  and  1831  is  void,  as  well 
in  the  hands  of  an  innocent  holder,  as  between  the  original  parties  to  it ;  and 
usury  may  be  given  in  evidence  under  the  plea  of  the  general  issue,  in  assumj)- 
sit,  (n)  where  tlie  whole  note  is  given  for  usury. 

The  liusband  of  a  '■'feme  sole  trader"  is  a  competent  witness  to  prove  usury  under 
the  Act  of  1777.(6) 

Before  O'Neall,  J.,  at  Charleston,  May  Term,  1840. 

These  were  actions  of.  assumpsit  against  V.  Le  Seigneur,  as  the 
endorser,  and  E.  Le  Roy,  (a  feme  sole  trader,)  the  maker  of  a  promissory 
nolo,  and  her  husband,  N.  Le  Roy. 

_  The  defendants  pleaded  the  general  issue,  and  under  it  proposed  to 
give  in  evidence,  that  the  consideration  of  the  note  was  usurious.  Mr. 
Simons,  the  plaintifl''s  attorney,  objected,  that  since  the  Act  of  1831, 
(Acts  of  18.31,  p.  48,)(c)  which  repealed  so  much  of  the  Act  of  1777  as 
made  a  contract  founded  on  an  usurious  contract  void,  usury  could  not 
be  given  in  evidence  under  the  general  issue,  but  must  be  specially 
pleaded.     There  is,  I   think,    much  force  in  this   objection,  where  the 

(o)  See  5  Rich.  54. 

(6J  See  Philips  vs.  Calwell  et  al,  2  Rich.  2.     An. 
(c)  6  Stat.  4U9  ;  4  Stat.  364.     An. 


^225] 


GAILLARD    VS.    LE  SEIGNEUR    &   LE  ROY.  147 


defence  only  goes  to  show  that  a  part  of  the  contract  cannot,  nnrlcr  the 
Act  of  1831,  be  enforced  ;  but  where,  as  in  this  case,  the  defence  is,  tliat 
the  whole  sum  secured  to  be  paid  by  the  note  is  for  usurious  interest,  then 
the  objection  cannot  apjily.  For,  in  such  case,  the  note  is  wiihout  legal 
consideration,  and  in  law  there  is  no  assumpsit  on  the  part  of  the  defend- 
ants to  pay  it.  (1  C.  P.  470,  471.)  Any  defence  which  shows  that 
at  the  commencement  of  the  action  the  plaintiff  had  no  cause  of  action, 
may,  in  general,  be  given  in  evidence  under  the  geueral  issue  of  non 
assumpsit,  in  the  action  of  assumpsit. 

The  defence  was,  therefore,  permitted  to  be  gone  into.  The  husband, 
N.  Le  Roy,  was  offered  as  a  witness,  under  the  usury  act  of  1777,  to 
prove  that  the  note  was  usurious.  He  was  the  person  who,  as  the 
attorney  of  his  wife,  made  the  note,  and  who  negotiated  the  loan,  and 
borrowed  the  money.  He  was  objected  to  by  the  plaintiff.  I  thought, 
under  the  words  of  the  act,  "the  horroiver  or  party  to  such  usurious 
bond,"  &c.,  he  was  a  competent  witness.  He  was  accordingly  sworn, 
and  proved  that  this  note,  of  which  the  following  *is  a  copy  : —  r*.:)op 
"Charleston,  September  30th,  1839.  $G00.  Sixty  days  after  L'^--* 
date,  I  promise  to  pay  to  the  order  of  Y.  Le  Seigneur,  six  hundred  dol- 
lars, value  received.  (Signed)  E.  Le  Roy,  by  her  attorney,  N.  Le  Roy. 
(Endorsed)  V.  Le  Seigneure," — was  given,  \Vith  another  of  the  same 
amount  and  same  parties,  to  Mr.  Willis,  the  money  broker  of  Gharledon, 
for  the  loan  of  62800  for  sixty  days.  Other  notes  were  given  for  the 
money  borrowed.  For  the  plaintiff,  Mr.  Willis  was  sworn,  and  denied 
this  statement.  He  said  that  S510  was  paid  by  the  plaintiff  to  him  for 
the  note,  and  he  handed  it  to  Mr.  Le  Roy. 

The  cases  went  to  the  jury,  and  they  were  told  if  they  believed  Willis, 
they  ought  to  find  for  the  plaintiff  $540,  without  interest  and  costs  ;  but 
if  they  believed  Mr.  Le  Ro\',  the  whole  note  was  usurious,  and  they  ought 
to  find  for  the  defendants. 

They  found  a  verdict  in  each  case  for  defendants. 

The  plaintiff"  appeals,  on  the  annexed  grounds. 

GROUNDS    OF    APPEAL. 

1.  Because  usury  cannot  be  given  in  evidence  under  the  plea  of  the  general 
issue. 

2.  Because,  in  the  latter  case,  N.  Le  Roy,  the  husband  of  the  sole  trader,  was 
permitted  to  testify  under  Act  of  Assembly  1777. 

Simons,  for  the  motion,  cited  5  Dane's  Abr.  332  ;  P.  L.  286  ;  Acts,  1830,  p.  27  ; 
1  Tread.  144 ;  1  Selwyn  N.  P.  53.  lie  contended  that  usury  could  not  be  given 
in  evidence,  under  the  general  issue,  but  that  it  must  be  specially  pleaded.  Tliis 
case  was  an  excei)tion  to  the  rule  laid  down  in  Chitty,  that  any  evidence  which 
goes  to  slu)W  there  is  no  contract,  is  admissible.  Cited  Harp.  201  ;  Rice  Rep.  310 ; 
Chev.  177 ;  1  Chitty,  p.  474. 

Second  ground — That  N.  Le  Roy,  the  husband,  not  being  the  borrower,  but  the 
mere  agent,  was  incompetent  to  give  evidence  of  usury,  under  the  Act,  and  at 
common  law  was  excluded,  because  a  party  to  the  record.  He  is  not  the  pai'ty  or 
borrower  contemplated  by  the  xVct  of  1777.     Cited  1  Bail.  479. 

Magrath,  contra,  said:   A  new  trial  is  required  for  two  reasons — first,  the  alleged 
incompetency  of  N.  Le  Roy,  the  husband  ;*  second,  the  inadmissibility  of  r^.j.^n 
the  defence  of  usury,  under  the  plea  of  non  assumpsit.     It  is  said  N.  Leroy  '- 
is  incompetent,  first,  because  he  is  the  husband ;  second,  because  he  is  a  party  to 

(a)  See  3  Bur.  54.     An. 


148  CHARLESTON,  FEBRUARY,  1841.      VOL.  I.  1*221 

the  record;  third,  because  he  is  not  the  "party  or  borrower,"  contemplated  by 
the  Act  of  1777. 

Even  if  he  is  the  husband,  he  is  competent  on  this  issue.  It  is  admitted  that 
according  to  common  law,  the  husband  is  not  a  competent  witness  for  the  wife. 
But  is  it  not  as  much  against  common  law  that  a  wife,  during  the  life  of  the  hus- 
band, can  be  sued  on  a  contract  ?  The  right  here  to  sue  is  an  exception  to  the 
common  law  principle.  It  is  given  by  statute,  A.  A.  1744,  sec.  10;  see  Cooper's 
Statutes,  3d  vol.  p.  620.  This,  then,  is  an  exception.  And  they  ought  not  to 
complain  of  what  is  deemed  an  exception  to  the  common  law  of  evidence,  when 
the  plaintiff  is  only  in  Court  by  an  exception  to  the  common  law  of  pleading. 
But  the  very  exception  provides  for  the  ease.  In  the  section  wherein  power  is 
given  to  sue  a  feme  covert  as  a  sole  trader,  it  is  declared  that  ' '  all  proceedings  to 
judgment  and  execiition,  by  or  against  such  feme  covert,  being  a  sole  trader,  shall 
be  as  if  such  woman  was  sole  and  not  under  coverture."  All  proceedings,  of 
course,  must  mean  to  include  as  well  such  as  are  in  issue  by  way  of  evidence,  as 
those  in  issue  by  way  of  pleading.  If  this  is  not  so,  then  the  provision  requiring 
the  husband  to  be  joined  "for  conformity,"  would, /wo  tanto,  repeal  the  section 
itself.  The  institution  of  that  thing  called  a  sole  trader  is  an  anomaly,  and  of 
course  it  cannot  be  expected  that  any  of  the  rules,  either  of  pleading  or  evidence, 
can  apply  so  well  as  where  there  is  nothing  in  principle  opposed  to  the  well 
established  liabilities  and  exemptions  of  the  common  law. 

But  it  is  said  the  husband  is  a  party  to  the  record,  and  therefore  incompetent. 
It  is  admitted  that  the  general  rule  is  clear  that  a  party  to  a  suit  cannot  be  a  wit- 
ness. Biit  why  ?  Not  because  he  is  a  party,  but  because,  being  a  party,  his 
intei'est  may  be  more  or  less,  but  certain,  nevertheless ;  and  this  of  course  disquali- 
fies. But  it  is  the  interest  which  makes  him  incompetent,  and,  therefore,  if  this 
is  removed,  the  rule  should  cease.  This  is  the  established  principle,  as  in  1  Phil- 
lips on  Ev.  70,  where  it  is  laid  down  that  the  mere  fact  of  being  a  party  to  the 
record  will  not  disqualify,  if  there  is  no  interest  or  liability.  So  in  the  Courts  of 
*99C!i  ^'^^^  State,  the  principle  has  been  affirmed,*  State  vs.  Anthony,  (1  McCord, 
•^  285,)  Vinijard,  Executor,  vs.  Brown,  (4  McCord,  24.)  and  fully  sustained  in 
Lenox  vs.  Deliaas,  (2  Yeates,  37.)  Now,  here,  the  witness,  it  is  conceded,  is  free 
from  all  bias  which  may  result  from  his  being  a  party  to  the  record,  because  he 
has  no  interest.  And  here  it  may  be  observed,  that  the  exclusion  is  asked  for  in 
a  case  wliere  the  Legislature  has  deemed  it  proper  to  shield  the  defendant ;  to  say 
not  only  tliat  the  obligation  to  pay  usury  is  avoided,  but  also  that  if  even  a  party 
to  the  record  and  directly  interested,  he  still  may  testify.  Where,  then,  such  a 
defence  is  brought  to  the  view  of  the  Court,  it  is  not  proper  that  such  construction 
should  be  given  as,  by  excluding  evidence,  to  sustain  the  evil  which  the  Legisla- 
ture seemed  disposed  to  prevent.  Again,  it  is  said  he  is  not  "the  party  or  bor- 
rower." Who  is,  if  the  witness  is  not?  He  did  the  business — effected  the  loan. 
Madame  Le  Roy  was  away.  Who  could  prove  the  transaction,  if  it  was  not  the 
witness  ?    It  is  wasting  words  to  argue  in  the  affirmative,  that  he  is  "  the  borrower." 

The  second  ground  is,  as  to  the  pleading.  The  Act  of  1831,  p.  49,  is  an  amend- 
ment of  tlie  Act  of  1830,  p.  29.  The  first  section  provides  that  the  bond,  con- 
tract, kc,  shall  not  be  utterly  void,  as  declared  in  the  Act  of  1777.  The  second 
section  provides  that  the  i)laintitt'  shall  recover  the  money  actually  advanced.  The 
money  as  money.  His  cause  of  action  is  not  the  bond  or  note,  but  the  money 
])aid,  ami  it  may  be  a  question  whether  he  can  declare,  except  for  money  paid. 
The  original  contract  is  not  at  all  revived,  but  a  new  assumpsit  by  law  is  created. 
Tills  being  tlie  case,  non  assutiij>sit  is  of  course  the  proper  plea.  Now,  in  this  case, 
money  was  paid  ;  therefore,  here,  non  assumpsit  was  certainly  proper.  Chitty, 
47<l.  But  suppose  the  contract  to  be  revived  for  so  much,  still  non  assumpsit  is 
tlio  projx-r  jil.-a.  If  tlie  note  is  valid  by  A.  A.  1831,  then  the  defendant  can  in- 
quire into  the  consideration  under  non  assumpsit.  Here  the  consideration  was  the 
money  ;  evidence  of  tlie  amount,  therefore,  is  evidence  of  consideration,  and 
unquestionably  proj.er.  Wlnaher,  tberefore,  the  old  contract  is  revived,  or  a  new 
a.-i»umpsit  raised  by  the  statute,  wtill  the  evidence  is  admissible.      1  Tidd.  ]'r.  591. 

It  can  ])e  scarcely  said  tliat  there  is  any  thing  like  special  i)leading  in  assumpsit. 
*2291  ''^'*''  ^'*'  "^  *'""  '"-■*'""  '"  fraud,  and  'this,  therefore,  covers  every  thing  by 
■'  way  of  defence  which  rebuts  the  fraud. 


*229]  GAILLARD    VS.    LE  SEIGNEUR    &   LE  ROY.  149 

Now,  ill  the  evidence  of  usury,  tlie  reply  is  given  to  the  fraud.  It  is  disproved 
by  allowing  the  amount  really  received.  Usury,  therefore,  is  admissible  under 
non  assumpsit ;  and  if  it  is  necessary  to  make  out  this  position,  still  more  clearly, 
it  may  be  shown  that  usury,  under  our  law,  cannot  be  pleade<l  specially.  With 
us,  usury  is  not  an  answer  to  the  action,  it  only  answers  part  of  the  action.  Now, 
it  is  one  of  the  first  principles  in  pleading,  that  the  plea  must  be  an  answer  to  the 
whole  cause  of  action  ;  no  such  thing  as  pleading  to  a  part  of  a  cause  of  action  ;  5 
Bac.  Abr.  449;  K.  3,  Tit.  Pleading;  S/uuo  vs.  Everett,  1  B.  &  P.  222;  1  JSellon's 
Practice,  298. 

Curia,  per  Butler,  J.  The  note  upon  which  this  action  was 
brought,  was  given  entirely  for  usurious  interest,  and  both  by  the  Act  of 
1777  and  1831, (a)  was  absolutely  void,  as  well  in  the  hands  of  an  innocent 
holder,  as  between  the  original  parties  to  it.  Like  every  other  naked 
contract  without  consideration,  it  created  no  legal  obligation.  In  this 
point  of  view,  the  defence  of  usury  was  properly  allowed  to  be  given  in 
evidence,  under  the  general  issue.  But  it  is  contended  that  the  principal 
witness  to  prove  the  usury,  was  not  competent,  as  he  was  the  husband 
of  the  party  intended  to  be  bound  by  the  contract.  It  is  true,  that  at 
common  law,  the  wife  and  hnsl)and  cannot  be  allowed  to  testify  for  each 
other,  on  an  issue  in  which  they  are  directly  interested.  Neither  can  a 
party  be  a  witness  in  his  own  cause.  By  the  terms  of  the  statute  of  1777, 
the  common  law  is  so  far  altered  as  to  permit  a  party  to  a  usurious  con- 
tract to  be  a  witness  for  himself.  The  great  object  of  the  statute  was  to 
reach  the  usury,  by  getting  rid  of  all  common  law  disabilities  of  the  wit- 
ness to  the  contract.  It  was  said,  however,  that  by  the  terms  of  the 
statute,  this  privilege  must  be  limited  to  the  party  really  in  interest,  and 
for  whose  benefit  the  money  was  borrowed,  and  that  as  the  money  was 
borrowed  upon  the  note  of  E.  Le  Roy,  the  wife,  and  for  her  use,  she 
alone  could  be  the  witness.  This  is  a  technical  exception,  and  if  allowed 
to  prevail,  would  go  far  to  defeat  the  object  of  the  statute.  This  might 
be  obviated  by  the  law  which  requires  the  husband  to  be  joined  for  con- 
formity sake,  in  all  actions  brought  on  the  contracts  of  a  feme  sole 
*trader.  Their  identity  by  a  fiction  is  presupposed  ;  and  the  r^cjoA 
fictions  of  law  may  sometimes  be  resorted  to,  to  preserve  its  sym-  L  ""^ 
metry  and  justice.  Why,  then  in  mere  legal  contemplation,  should  the  hus- 
band not  be  regarded  as  a  party  to  this  contract  ?  He  is  a  party  to  the 
record,  for  conformity,  and  let  the  same  fictitious  conformity  extend  to 
the  contract,  and  all  objections  would  be  removed.  But  I  do  not  wish 
to  rest  the  judgment  of  the  Court  on  such  a  ground.  The  provisions  of 
the  statute  must  not  be  evaded  by  a  technical  construction  of  it,  incon- 
sistent with  the  clearly  expressed  purpose  and  obvious  meaning  of  the 
Legislature. 

The  plenitude  of  the  remedy  ought  not  to  be  impaired,  but  maintained, 
by  the  Courts.  The  usurer  is  entitled  to  no  sympathy  or  protection,  in 
his  efforts  to  gratify  his  own  cupidity,  by  making  victims  of  tlie  weak 
and  necessitous.  E.  Le  Roy  was  not  present  when  her  husband,  under 
a  power  which  he  may  have  abused,  gave  this  note,  and  if  the  right  to 
testify  was  restricted  to  her  alone,  this  would  be  the  result,  thiit  the 
party  who  may  have  been  ignorant  of  the  contract,  in  its  inception,  would 
be  the  witness  contemplated  by  the  statute,  whilst  the  party  who  really 

(a)  4  Stat.  364 ;  6  Stat.  409.     An. 


150  CHARLESTON,  FEBRUARY,  1H41.      VOL.  I.  [*230 

raade  it,  and  was  cognizant  of  all  the  facts,  would  be  excluded.  Such 
cannot  be  the  operation  of  a  statute  which  it  has  been  said  could  not  be 
evaded  by  the  wit  of  man.  Crafty  contrivance  is  less  to  be  tolerated 
than  an  open  attempt  to  violate  law.  The  second  section  of  the  Act  of 
177T,  (4  Stat,  at  Large,  364,)  recites,  by  way  of  prearalde,  that  as 
transactions  against  the  Act  "  will  be  generally  carried  on  only  when  the 
borrower  and  lender  are  present  together,"  be  it  enacted,  &c.,  "that 
the  borrower  or  party  to  such  usurious  bond,  specialty,  contract  or 
promise,  &c.,  shall  be,  and  is  hereby  declared  to  be,  good  and  sufficient 
witness  in  law,  to  give  evidence  of  such  oftence  against  the  Act,  &c." 
Kow,  what  party  was  here  meant,  but  the  party  that  was  present,  as 
stated  in  the  recital  ?  The  party  that,  in  fact,  borrowed  the  money  and 
made  the  contract.  The  object  of  the  xict  was  to  make  a  witness  of  the 
person  that  was  engaged  in,  and  consequently  acquainted  with,  the 
transaction.  Although  E.  Le  Roy  was  a  party  to  the  note,  N.  Le  Roy 
was  the  actual  borrower,  and  present  when  the  contract  was  made.  Had 
he  been  an  indifferent  agent,  he  would  have  been  a  good  witness,  with- 
out the  statute,  for  he  would  not  have  been  interested.  The  aim 
*9Qn  *°^  ^^^  statute  was  to  make  witnesses  of  all  the  parties  interested 
-J  in  the  case,  who  could  give  such  information  as  would  expose  and 
detect  the  usury.  We  think  the  evidence  of  N.  Le  Roy  was  properly 
received  on  the  trial  below.     Motion  refused. 

Gaxtt,  O'Xeall,  Evans  and  Earle,  JJ.,  concurred. 

Richardson,  J.,  dissented,  and  delivered  the  following  opinion  : 

The  terms  of  the  Act  are  "  that  in  all  cases,"  &c.,  "  where  any  suit  or 
action  shall  be  brought,"  &c.,  "  touching  any  usurious  bond,  specialty, 
contract,  promise  or  agreement,  or  taking  of  usury,"  &c.,  &c.,  "the 
borrower  or  party  to  such  usurious  bond,"  &c.,  "shall  be,  and  is  hereby 
dOclured  to  be  a  good  and  sufficient  witness  in  law,  to  give  evidence," 
&c.,  P.  L.  284.  The  terms  borrower  and  party  to  such  bond,  &c.,  are 
synonymous.  We  usually  say  party  to  a  bond — borrower  by  parol. 
Both  terms  signify  the  person  that  received  the  money  on  his  own  credit 
and  responsibility,  and  has  been  sued  for  it.  ^No  other  person  can  be 
the  borrower  or  party  sued  for  the  money  lent.  The  proposition  of  the 
Act  is  tlien  plainly  this  :  Whoever  is  sued  at  law  for  money  borrowed 
on  usury,  is  made  a  competent  witness.  Kow,  is  N.  Le  Roy  such  a 
]icr.-ion.  Is  he  sued  at  law. touching  any  usurious  bond,  &c.,  or  promise  ? 
Is  he  Ijorrower  or  party  to  any  such  ?  Is  he  in  any  way  liable  for  the 
money  he  ol)tained  as  agent  of  Emma  Le  Roy,  and  for  which  he  gave  her 
own  note— not  his  ?  It  ought  to  be  enough  to  answer  that  N  Le  Roy 
has  been  sued  with  his  wife,  the  sole  trader,  merely  for  conformity  ;  that 
it  is  not  pretended  he  is  liable  for  the  money.  But  I  admit  that  the 
case  is  to  be  decided  as  if  his  name  did  not  appear  on  the  record; 
although  the  Act  does  clearly  contemplate  the  party  or  borrower  as  sued 
at  law  iHjfore  he  can  be  a  competent  witness.  These  three  ])ropositions 
are,  I  presume,  granted.  If  not,  they  are  all  proved  by  the  fact  that  N. 
Le  Roy  was  the  mere  agent  of  the  responsible  party  and  borrower. 
Emma  Le  Roy,  and  is  sued  with  her  for  legal  conformity  only.  If  N. 
Le  Roy  were  not  the  husband  of  Emma  Le  Roy,  both  now,  and  at  the 


^231] 


GAILLARD    VS.    LE  SEIGNEUR    &    LE  ROY.  151 


time  of  borrowing  the  money,  the  error  of  calling  him  the  borrower 
*or  party,  would  strike  us  at  a  glance.  If  he  had  been  only  the  r^icgog 
clerk  of  JEmraa  Le  Roy,  and  had  negotiated  the  usurious  loan  for  ^  "  "" 
her,  none  would  call  him  the  party  or  borrower  of  the  money,  and  he 
would  not  have  been  sued.  Now,  then,  follow  out  that  supposition. 
As  such  a  clerk  to  Mrs.  Le  Roy,  he  would  not  have  been  sued,  and  would 
be  a  good  witness  at  common  law  ;  but  is  not  made  so  by  the  Act  of 
1111. 

Go  a  step  further,  aud  suppose  the  clerk,  N.  Le  Roy,  had  afterwards 
married  his  principal,  Emina  Le  Roy.  It  would  then  follow  that  he 
could  no  longer  be  a  witness  for  or  against  her,  at  common  law,  and  the 
only  remaining  question  would  be,  can  he  then,  by  virtue  of  the  Act,  be 
made  the  borrower  or  party  to  the  original  loan,  on  usury,  so  as  to  be 
made  a  witness  under  the  Act  ?  The  answer  would  be  tnis  :  the  true 
character  and  parties  to  the  transaction,  cannot  be  changed  by  the  act  of 
Mrs.  Le  Roy  and  her  clerk.  "  Quod  ab  initio  nan  valet,  tractu  temporia 
nan  convaleacere  potest.'"  She  cannot  make  him  the  borrower.  And 
if  Mrs.  Le  Roy,  the  party  and  borrower,  has  thus  chosen  to  render  her 
clerk  an  incompetent  witness,  it  is  no  more  than  law  to  allow  her  free 
agency.  She  took  him  for  better  for  worse,  which  includes  the  legal 
consequence,  that  her  former  clerk  can  be  no  longer  a  witness  for  or 
against  her,  as  he  might  before  the  marriage  have  been  at  common  law  ; 
and  there  is  no  alchemy  in  the  Act  to  transmute  the  character  and 
])Osition  he  held  at  the  time  the  money  was  borrowed.  He  is  still  no 
borrower  or  party  to  the  loan,  and  always  will  be  none.  But  have  we 
not  described  the  precise  situation  of  Mr.  LeRoy  himself?  He  was  the 
clerk  or  other  agent  of  Mrs.  LeRoy,  and  negotiated  the  loan  for  her,  but 
was  not  credited  or  responsible  for  the  money  himself,  and  therefore  not 
the  party  and  borrower;  yet  he  was  and  is  the  husband  of  the  true  party 
and  borrower.  But  whether  he  was  the  clerk  aud  husband  at  the  time 
she  borrowed  the  money,  or  was  then  clerk  and  now  her  husband,  can 
make  no  difference  in  the  question  upon  his  competency  as  a  witness  by 
virtue  of  the  Act. 

The  Act  makes  it  depend  altogether  upon  two  facts,  his  being  the 
borrower,  aud  being  sued  for  the  money  ;  neither  of  which  appears  in  the 
case,  but  the  converse.  The  test  and  condition  required  by  the  Act,  is 
then  wanting,  and  the  case  *stauds  clearly  at  common  law,  which  r^.^-.q 
forbids  the  husband  being  his  wife's  witness  when  on  or  off  the  ^  ""^ 
record. 

Why  is  it  said  in  some  of  the  English  cases  that  the  husband  cannot 
be  the  agent  of  his  feme  sole  trader  ?  It  cannot  be  that  she  would  not 
be  bound  by  his  acts  ado))ted  by  herself,  though  done  by  him.  But 
because  her  husband  cannot  verify  or  deny  her  acts,  on  oath,  and  he 
might  through  their  moral  union  destroy  her  lawful  free  agency  in  sole 
trading,  &c.,  in  which  he  cannot  be  a  partaker  legally.  In  law  they  are 
incorporated  and  become  as  one  person  ;  yet,  by  law,  she  may  be  a  sole 
trader.  And  to  this  limited  e.xtent,  they  are  as  two  separate  persons, 
and  she  a  free  trader.  Our  Act,  by  requiring  the  husband  to  be  sued 
with  the  wife  "for  conformity  only, ''^  illustrates  well  this  princii)le;  upon 
which  the  whole  argument  turns.  But  if  we  suffer  the  form  to  jierplex 
and  alter  the  doctrine,  we  shall  soon  have  irresponsible  husbands  trading 


152  CHARLESTON,  FEBRUARr,  1841.       VOL.  I.  [*233 

under  the  name  of  tlieir  wives,  as  well  as  husbands,  clerks,  swearing  to 
usury  for  their  wives,  in  cases  where  the  husband  was  only  agent  to  the 
wife,  and  not  the  borrower  of  the  money  under  the  Act,  nor  in  any  way 
liable  for  the  loan.  But  quite  a  different  argument  was  also  urged, 
thou"-h  I  cannot  think  it  was  relied  upon,  as  to  the  odium  of  usury. 
Usury  is  to  be  put  down.  Assuredly  it  is,  in  whatever  shape  we  discover 
it  lurking  in  a  contract  of  borrowing.  But  we  are  to  come  at,  point  out, 
and  prove  "such  offence,"  as  the  Act  calls  it,  by  competent  and  lawful 
testimony  ;  and  the  odious  loan  must  be  first  made  to  appear  before  it 
can  be  punished.  Bat  in  a  case  of  express  contract,  as  a  note,  or  of 
vested  rishts,  we  are  not  at  libert}^  as  this  argument  assumes,  to  conceive 
that  there  is  something  wrong,  and  therefore  extend  the  strict  provision 
of  the  Act,  in  order  to  destroy  the  contract.  The  odium  of  usury  may 
be  just.  I3ut  the  evidence  of  it,  is  as  of  strict  law,  as  belongs  to  any 
other  case  ;  and  there  can  be  no  odium  before  the  charge  is  so  proved. 
This  argument  then  does  not  apply  to  the  true  question.  I  cannot, 
therefore,  support  the  decision  that  held  Mr.  Le  Roy  a  competent 
witness. 

See  2  Rich.  2.     An. 


*234]     *The  City  Council  of  Charleston  vs.  John  Elford, 

Wharfinger. 

To  tlirow  bales  of  cotton  from  the  upper  story  of  a  cotton  warehouse,  (without  the 
nsual  rope  and  tackle, )  on  any  of  the  open  spaces  near  such  warehouses,  where 
cotton  is  ordinarily  exposed  for  sale,  is  a  violation  of  the  city  ordinance. 

Before  his  Honor  the  Recorder,  tried  in  the  City  Court. 

This  was  an  action  to  recover  a  penalty  under  an  ordinance  of  the 
City  Council,  passed  the  day  of ,  A.  D.  ■ . 

It  was  admitted  that  the  defendant  had  permitted  ten  bales  of  cotton 
to  be  thrown  from  a  door  in  the  third  story  of  a  store  house  belonging  to 
Boyce  &  Co.'s  wharf.  The  bales  were  thrown  out  on  the  south  side  of 
the  storehouse  into  an  open  space  ordinarily  occupied  by  cotton  exposed 
for  sale.  Tlirougli  and  Qver  this  space  persons  were  continually  passing 
to  and  fro.  Taxes  are  paid  for  the  vacant  space,  but  not  for  the  streets 
or  ways. 

The  defendant  was  found  guilty,  and  he  appeals  on  the  following 
grouiuls  : 

1.  Tliat  his  Honor  charged  the  jury  that  this  vacant  space  was  within  the 
meaning  of  the  ordinance. 

2.  Tliat  the  locus  in  quo,  being  a  close,  is  not  within  the  penalty  of  the  ordi- 
nance. 

3.  That  the  verdict  is  in  other  respects  against  law  and  evidence. 

Curm,  per  Gantt,  J.  Tiie  preamble  to  the  ordinance  recites  that 
several  distressing  accidents  have  arisen  from  persons  throwing,  or  per- 
mitting to  be  thrown,  from  the  second  or  upper  floors  of  warehouses, 


*234]        CITY  COUNCIL  vs.  ELFORD.       STATE  VF.  JONES.  153 

stores  aiul  other  buildings  witliin  the  City  of  Charleston,  cotton  in  bales, 
goods  and  other  articles,  and  that  it  has  become  essential  to  the  safety 
of  the  inhabitants  thereof,  to  check  and  prevent  cuch  practices. 

Ordains  that  any  person  or  persons  who  shall  throw,  or  permit  or  suffer 
to  be  thrown,  from  the  second  or  upper  floor  of  any  warehouse,  store  or 
other  building,  or  who  shall  lower,  or  permit  or  suffer  to  be  lowered,  out 
of  the  second  or  upper  story  of  any  such  building  as  aforesaid,  cotton  in 
bales,  goods  or  *any  other  articles,  without  a  good  and  sufficient  r:).9qK 
tackle  and  rope,  shall,  for  every  such  offence,  be  fined  in  a  sum  L 
not  exceeding  one  hundred  dollars  nor  less  than  fifty,  &c. 

It  was  admitted  on  the  trial,  as  stated  in  the  report,  that  the  defendant 
had  permitted  ten  bales  of  cotten  to  be  thrown  from  a  door  in  the  third 
story  of  a  storehouse  belonging  to  Boyce  &  Co.'s  wharf.  On  the  trial  of 
this  case,  it  was  contended  in  the  defence,  and  is  made  a  ground  of  ap- 
peal here,  that  as  the  bales  were  thrown  out  on  the  south  side  of  the  store 
house  into  an  open  space  where  cotton  was  ordinarily  placed  for  sale, 
that  the  intendment  of  the  ordinance  was  not  violated  ;  but  it  being 
admitted  that  over  this  space  persons  were  continually  passing  to  and 
fro,  it  would  have  been  strange  indeed  if  the  Recorder  had  put  any  other 
interpretation  upon  the  ordinance,  than  the  one  rendered.  A  bale  of 
cotton  falling  on  one  traversing  this  plat  of  ground  would  prove  as  dis- 
astrous as  if  he  was  traversing  the  street,  and  the  ordinance  embracing 
all  and  every  part  of  the  City,  there  can  be  no  doubt  of  its  having  been 
violated  in  this  case. 

The  Court  are  unanimous  in  their  opinion,  that  the  Recorder's  charge 
to  the  jury  was  correct,  and  that  the  defendant  was  properly  found  guilty 
by  the  jury. 

The  defendant  can  take  nothing  by  his  motion. 

The  whole  Court  concurred. 

See  Chimneij  Sioeep^s  case,  11  Rich.      City  Council  vs.  ,  Chit.  Jan. 

'59.     An. 


\  *The  State  vs.  George  W.  Jones.  [*236 

The  words  warrant  and  order,  in  an  indictment  for  forgery,  describing  the  instru- 
ment forged,  are  synonymous  with  warrant  or  order. 

An  instrnment  signed  by  a  party,  is,  in  legal  parlance,  the  paper  writing  of  such 
party.  It  is  his  signature  which  gives  it  that  character  and  not  the  body  of 
the  instrument. 

Every  indictment  for  forgery,  must  set  forth  the  instrument  charged  as  fictitious, 
in  words  and  figures,  so  that  the  Court  may  be  able  to  judge  from  the  record, 
whether  it  is  an  instrument  in  respect  of  which  forgery  can  be  committed. 

If  an  indictment  charges  the  forgery  to  be  with  intent  to  defraud  an  incorporated 
bank,  and  its  corporate  name  is  set  forth,  it  is  sufficient  if  it  appears  to  be  an 
incorporate  bank  within  this  State. 

The  cashier  is  a  mere  officer  representing  the  bank,  and  a  check  drawn  upon  him 
as  such  is  drawn  upon  the  bank ;  tlierefore,  a  fraud  committed  on  him,  is  a 
fraud  upon  the  bank. 

The  same  indictment  set  forth  that  the  paper  writing,  alleged  to  be  forged,  pur- 


154  CHARLESTON,  FEBRUARY,  1841.      VOL.  I.  [*236 

ported  to  be  a  -n-arrant  aud  order  for  the  pa^nnent  of  money,  and  to  have  been 
drawn  bv  one  Tristram  Tupper.  It  then  set  out  the  instrument  in  hmc  verba, 
from  wliich  it  appeared  that  it  was  signed  T.  Tupper,  and  averred  that  the 
prisoner  made  it  with  the  intention  to  defraiid  Tristram  Tupper :  Held,  that 
there  was  no  variance,  and  that  the  count  was  well  framed. 

If  an  instrument  from  its  face  purports  to  have  been  made  in  Charleston,  S.  C, 
and  it  is  proved  the  prisoner  at  its  date  was  there,  and  had  the  same  in  his 
possession,  it  is  sufficient  evidence  to  show  that  it  was  made  there. 

If  a  prisoner  is  guiltv  in  fact  of  forgerv,  his  conviction  may  be  sustained  either 
under  the  Acts  of  1736-7,  the  Act  of  ISOl,  or  at  common  law. 

Before  O'Xeall,  J.,  at  Charleston,  May  Term,  1840. 

The  prisoner  was  indicted  in  the  1st,  3d,  and  5th  counts,  for  the  false 
making,  and  in  the  2d,  4th,  and  6th  counts,  for  uttering  and  publishing, 
as  true,  the  following  paper  : 

"No.  73.  Charleston,  S.  C,  February  l%lh,  1840. 

"  Cashier  of  the  Bank  of  Charleston,  So.  Ca.,  pay  to  Geo.  W.  Jones, 
or  bearer,  thirty-two  dollars. 

"$32  00.  T.  TurPER." 

It  was  proved  that  the  prisoner  came  to  Charleston  on  the  ITth  day 
of  February,  1839;  he  boarded  at  a  Mr.  Harrison's.  The  night  after 
he  came,  he  applied  to  his  landlord  for  the  loan  of  $2,  to  go  to  the 
theatre;  he  pulled  out  the  check,  signed  T.  Tupper,  on  the  Bank  of 
Charleston,  for  $32,  and  offered  it  to  him,  saying,  keep  it  for  security,  to- 
morrow I  will  collect  it,  get  the  money,  and  return  it  to  you.  Harrison 
*-)^7l  *declined  taking  the  check,  as  he  thought  there  was  something 
"  -•  suspicious  about  it;  he,  however,  loaned  him  the  $2.  The  prisoner 
afterwards  told  him  he  had  collected  the  check  and  spent  the  money. 
After  the  prisoner  was  arrested  for  grand  larceny,  his  trunk  was 
examined,  and  the  check  set  out  in  the  indictment  was  found  in  it  ;  and 
Mr.  Harrison  identified  it  in  Court,  as  the  one  offered  to  him. 

Tlie  check  was  fully  proved  to  be  a  forgery.  In  Charleston  there  is 
but  one  man  named  Tristram  Tupper;  he  is  the  President  of  the  Ham- 
burg Riiiiroad  ;  he  sometimes,  in  small  matters  of  business,  such  as 
orders  for  payment  of  bills  against  the  company,  signs  his  name  T. 
Tupper.  ()\\  more  important  matters,  such  as  scrip,  he  writes  his  name 
Tristram  Tupper.  The  prisoner,  in  the  purchase  of  some  clothes,  on  the 
18th  of  Feln-uary,  from  Mr.  Flynn,  passed  by  the  name  of  Henry  G. 
King;  ho  ordered  some  clothes  from  Mr.  Pemberton,  on  the  17th  or 
iSlh  of  Fel)ruary,  by  the  name  of  George  Ross. 

Four  objections  were  taken  to  the  indictment ;  1st.  That  the  indict- 
ment (lcKcril)Cs  the  paper  forged,  to  be  a  warrant  and  order;  the  Act  of 
AsKeinbly  speaks  of  a  warrant  or  order.  2d.  The  indictment  describes 
the  paper  foi-ged  as  a  paper  writing,  when  it  was  partly  in  print  and 
partly  in  writing.  3d.  Tiiat,  according  to  the  Act  of  1801,  and  the 
case  of  the  Stale,  vs.  Jfovseal,{a)  the  party  to  be  defrauded  must  be 
alh'g*'-d  to  be  within  the  Stale.  4lh.  The  "indictment  alleged  that  the 
paper  was  forgeil  with  tlic  intent  to  defraud  one  Tristram  Tupper,  aud 
tlic  jiapcr  was  signed  T.  Tii])])er. 

1  thuuLdit  tlicre  was  nothing  in  these  objections.     As  to  the  first,  I 

(a)  0  Stat.  397.     An. 


*231]  STATE    VS.    JONES.  155 

thoufjlit  the  words  in  the  Act,  "warrant  or  order,''  were  used  as  synony- 
mous, and  to  describe  the  same  paper,  and  therefore,  tliat  the  description 
in  the  indictment,  by  tlie  words  warrant  and  order,  was  j^ood.  To  the 
second,  I  thoutrlit  it  a  sufficient  answer,  that  a  paper  partly  in  print  and 
partly  in  writing,  and  si<rned,  or  i)nr[)orting  to  be  signed,  by  a  person, 
was  legally  the  })aper  writing  of  such  person.  As  to  the  third,  the  case 
of  the  Sfale  vs.  Ilouseal,  (2  Brev,  Hep.  219,)  furnished  the  answer  ;  the 
want  of  the  allegation,  that  the  party  intended  to  be  defrauded  resided 
within  the  State,  prevented  the  case  from  being  covered  by  the  Act  of 
1801  ;  but  without  such  allegation  it  was  within  the  Act  of  1736-7.(0) 
(P.  L.  147.)  The  fourth  ol)jection,  was  one,  I  thought,  dependant  on 
the  *])roof.  If  it  was  shown  that  the  paper  forged,  signed  T.  Tup-  rnrw^qo 
per,  was  intended  to  represent  Tristram  Tupper,  then  the  matter  ^ 
was  well  laid  in  the  indictment. 

The  case  then  went  to  the  jury,  and  they  were  instructed,  that  forgery 
consists  in  the  false  making  of  any  one  of  the  papers  enumerated  in  the 
Act  of  Assembly,  with  the  intent  to  defraud  anothet' ;  or  in  the  uttering 
and  publishing  of  such  paper  as  true,  knowing  it  to  be  forged.  They 
were  told,  that  the  inquiries  in  fact  for  them  were — 1st.  Did  the  prisoner 
falsely  make  the  pai)er  set  out  in  the  indictment,  as  the  check  of  Tris- 
tram Tupper  Here  they  were  told,  first,  to  ask  was  Tristram  Tujjper 
the  person  meant  by  T.  Tupper  ?  They  were  referred  to  the  proof,  tliat 
he  was  the  only  man  in  Charleston  known  to  be  thus  designated  ;  tliat 
his  signature  was  sometimes  T.  Tupper,  and  sometimes  Tristram  Tup- 
per ;  and  that  the  prisoner  said  l>e  would  collect  the  check  next  day.  If 
they  were  satisfied  that  Tristram  Tupper  of  Charleston,  was  the  person 
intended  by  T.  Tupper,  then  there  was  no  doubt  that  the  paper  was  false. 
And  then  the  inquiry  would  be,  did  the  prisoner  make  it  ?  The  jury 
were  referred  to  the  facts  that  it  was  made  payable  to  him  ;  it  was  found 
in  his  possession  ;  it  was  ofl"ered  by  him  as  a  genuine  paper  to  Harrison  ; 
his  statement,  that  he  afterwards  collected  it,  when  in  fact  it  was  still  in 
liis  own  possession  ;  his  bearing  false  names,  and  his  want  of  money.  If 
they  were  satisfied  he  made  the  paper,  then  the  jury  were  directed  to 
inquire,  did  he  make  it  at  Charleston  ?  Here  the  jury  were  referred  to 
tiie  facts,  that  on  its  face  it  purports  to  be  made  at  Charleston  ;  and  that 
the  prisoner  at  its  date  was  in  the  city.  If  these  questions  were  all 
found  against  the  prisoner,  then  the  second  inquiry  would  arise — did  he 
make  the  paper  with  an  intent  to  defraud  another  ?  They  were  told,  if 
it  was  made  without  any  intention  of  being  used  as  genuine,  then  the 
fraudulent  intention  would  be  at  once  negatived,  and  the  prisoner  would 
be  guiltless.  But  this  ought  to  be  manifest,  before  such  a  conclusion 
was  adopted.  For,  generally,  the  false  making  of  a  paper,  creating  a 
liability  on  another,  or  conferring  benefit  on  the  maker,  would  be  the 
evidence  of  a  fraudulent  intent. 

They  were  told,  if  the  offer  to  Harrison  was  with  a  view  of  raising 
money  on  the  check,  either  by  passing  it  away,  or  depositing  it  as  security 
for  money  loaned,  it  would  shov/  *lhatthe  instrument  had  been  for-  r,jcgoQ 
ged  with  a  corrupt  intent.      And  when  it  was  thus  shown  that  it  ^   "* 
was  intended  to  be  used  as  a  money  security,  it  was  in  contemplation  of  law 

(a)  3  Stat.  470,  §  3. 


156  CHARLESTON,  FEBRUARY,  1841.      VOL.  I.  [*239 

in  fraud  of  Tupper  and  the  Bank  of  Charleston.  For  a  draft  on  the 
cashier  of  the  Bank  of  Charleston,  was  a  draft  on  the  Bank.  The  effect 
of  such  an  order  was  to  withdraw  the  drawer's  funds  from  the  Bank;  and 
if  forged,  the  Bank  could  not  credit  his  account  with  the  payment ;  and 
hence,  therefore,  the  Bank  would  be  defrauded  by  such  a  forgery, 
although  it  might  have  a  remedy  even  against  the  officer.  In  an  indict- 
ment for  forgery,  it  was  not  necessary  to  make  the  party  guilty,  that  his 
intended  fraud  should  be  fully  consummated,  by  obtaining  money,  or 
money's  worth,  on  the  paper  forged  ;  it  was  sufficient  if  the  fraudulent 
intent  with  which  the  paper  was  forged,  was  made  out.  The  jury  found 
the  prisoner  guilty  on  the  first,  third,  and  fifth  counts,  for  forging  the 
check  ;  but  acquitted  him  on  the  second,  fourth,  and  sixth  grounds,  for 
uttering  and  i)uljlishing  the  check  as  true,  knowing  it  to  be  forged.  As 
to  this  branch,  I  do  not  therefore  report  my  charge.  The  prisoner 
moves  for  a  new  trial,  and  in  arrest  of  judgment,  on  the  annexed 
grounds  : 

GROUNDS    OF    APPEAL. 

L  Because  the  indictment  in  the  1st,  3d  and  .'ith  counts,  is  defective, 
inasmuch  as  the  words  of  the  act  are  "  warrant  or  ordpr,"  in  the  disjunctive, 
and  the  words  in  the  counts  are  "warrant  and  order,"'  in  the  conjunctive;  the 
words  are  not  synonymous. 

2.  Because,  in  these  counts,  the  forging  is  alleged  to  have  been  of  a  "  certain 
paper  writing,"  and  proof  was  of  a  paper  partly  written  and  partly  printed. 

3.  Because  those  counts  are  still  farther  defective,  inasmuch  as  they  do  not 
set  forth  that  the  party  wliom  it  is  intended  to  defraud,  if  a  corporation,  was  in 
the  United  States,  or  within  this  State;  or,  if  a  person,  was  resident  in  this 
State,  or  within  the  United  States, 

4.  Because  the  first  count  is  still  further  defective,  as  it  alleges  the  intention 
to  defraud  the  Bank  of  Charleston,  S  C,  and  the  tenor  of  the  clieck  shows 
that  it  was  a  checiv  upon  the  cashier  of  the  Bank  of  Charleston,  S.  C. 

5.  Because  the  third  count  is  further  defective,  because  the  purport  and  the 
*240l  ^*^"'^'"  °'"  ^^"^  check  in  the  count  are  at  variance  ;  *tl)e  purport  being  that 

J  it  was  the  check  of  Tristram  'I'upper,  and  the  tenor  showing  that  it  was 
the  check  of  T.  Tupper. 

G.  Jieoause  the  same  count  was  further  defective,  alleging  that  it  was  to 
defraud  'I'ristram  Tupper,  and  the  tenor  of  the  check  showed  that  it  was  the 
check  of  T.  'I'upper. 

7.  Becau.so  tliere  was  no  proof  where  the  check  was  forged,  and  the  jury  was 
instructed  tiiat  if  they  believed  the  prisoner  made  the  paper,  the  date  showed 
where  he  made  it. 

H.  Because  his  Honor  charged  the  jury,  that  the  prisoner  might  be  convicted 
under  tiie  Act  of  IHOl,  or  17:50,  or  the  common  law,  although  the  oQ'euce  was 
charged  to  be  against  the  Act  of  Assembly,  &c. 

Simmons,  for  tlie  motion,  cited  3  M'C.  383  ;  2  Brev.  262 ;  3  Tom.  L.  Die.  761  ; 
r.  .la.-ol).  ih.  :5S7,  3.SS  ;  4  Tuc.  lilac.  249,  (note,)  Acts,  1736-7,  P.  L.,  147;  Acts 
IHOl,  !•  F;iiist.  37'.t.  Was  the  indictment  IVamed  under  the  Act  of  ISOl  ?  Cited 
also,  2  I'.os.  .V  Pul.  238 ;  2  Mason  U.  S.  R.  464.  Nothing  woiald  make  a  printed 
pafM-r  a  written  paper.  Supp.)S('  tlie  prisoner  liad  been  ac(iviitted,  and  subsequent 
to  Ills  neqiiittal,  a  iiai)er  liad  been  found  wliolly  written,  could  lie  plead  his  ac- 
quitlal  .'  He  could  not.  Tlic  prisoner  could  not,  in  such  a  case,  apprehend  what 
he  WHS  to  an.swer. 

An  indictiru'ril  undi-rtaking  to  recite,  and  not  doing  so,  produces  a  fatal  vari- 
ance. Mr.  S.  contended  that  there  was  a  diflference  l)etween  the  Acts  of  1736  and 
1737,  and  the  Act  of  IbOl.     Cited  The  State  vs.   Jloiiseal,  2  Brev.  219.     It  is  as 


*24()] 


STATE   VS.   JONES.  157 


essential  that  an  indictment  slionld  set  out  tliat  the  person  named  in  the  indict- 
ment resided  in  the-  !-^tate  and  in  tlie  United  states,  as  tliat  he  forged  or  assisted 
in  forging. 

Tlie  offence  of  forgery  is  only  made  capital  by  statute.  Under  the  fourtli 
ground,  cited  2  IStarkie  Kv.  3:U) ;  3  Brev.  liej).  5(17,  State  vs.  Waters.  Aw  error  in 
a  single  word  is  fatal.  Fifth  ground,  2  Leaeli.  Cli.  Cases,  808  ;  2  hitarkie  Ev.  331  ; 
2  E.  P.  C.  992. 

Bailey,  Attorney  General,  contra,  on  the  first  ground,  cited  1  Brev.  Rep.  35.  As 
to  the  place  where  made,  2  Russel  on  Cr.  373;  Foster's  case,  3  M'C.  442.  The 
first  count  is  good  *under  the  Act  of  ISOl.  He  cited  2  Brev.  262,  State  vs.  r^oi-i 
Crank,  2  Bail.  G(i.  ^ 

Wilson,  in  reply,  said  that  forgery,  at  common  law,  was  the  counterfeiting  of 
any  writing  with  a  fraudulent  intent,  whereby  another  may  be  prejudiced.  First, 
the  forgery  must  be  proved  to  be  in  the  country,  and  made  by  the  party,  and  his 
liandwi-iting  proved.  Tlie  bare  fact  of  finding  the  instrument  in  the  country  at 
the  time,  and  the  defendant,  is  not  prima  facie  evidence  that  he  forged  it  in  that 
country.  Rex  vs.  Park  ^-  Broicn,  Starkie,  231  ;  2  East,  P.  C.  992.  If  an  intent 
to  defraud  a  corporation  be  alleged,  an  intent  must  be  proved  to  defraud  them  in 
tlieir  corporate  cajiacity  ;  and  if  an  attempt  to  defraud  several  in  their  individual 
capacities,  be  alleged,  and  it  should  appear  that  the  real  intention  was  to  defraud 
them  in  their  cori)(n'ate  capacity,  the  variance  will  be  fatal.  E.  P.  C.  991.  A 
warrant  of  attorney  to  forge,  is  forgery.  Faris''  case,  1  Raym.  81  ;  2  Brev.  219, 
as  to  recital  of  words.  As  to  the  printing  and  writing,  2  B.  &  P.  238  ;  1  Brev. 
25.  Warrant  or  order,  2  Bail.  66  ;  2  Russ.  373  ;  3  M'C  441 ;  5  Pickering's  Rep. 
279  ;  2  Devereaux  N.  C.  444  ;   2  Southard,  744. 

Curia,  per  O'Neall,  J.  The  different  grounds  of  the  prisoner's 
motion  have  received  from  the  Court  a  deliberate  consideration,  and  it  is 
now  my  duty  to  give  the  judgment  upon  them.  This  shall  be  done  in  as 
few  words  as  possible. 

The  first  ground  objects  to  the  manner  in  which  the  indictment 
describes  the  instrument  forged,  "a  warrant  and  order,"  when  the  Acts 
of  1  736-1,  and  of  1801,  speak  of  "a  warrant  or  order."  I  had,  on  the 
trial  below,  and  I  have  now,  no  doubt  that  the  indictment  sets  it  out  pro- 
perly. The  Legislature  employed  two  words  to  describe  the  same  thing, 
A  warrant  for  tlie  payment  of  money  or  the  delivery  of  goods,  is  an  order, 
and  an  order  for  the  same  purpose  is  also  a  warrant. 

Indeed,  the  manner  in  which  they  are  used  in  the  Acts  :  "Any  warrant 
or  order  for  the  payment  of  money  or  delivery  of  goods,"  shows  that  one 
instrument  was  intended  to  be  described.  The  same  thing  is  supposed  to 
be  accomplished  by  either,  and  hence  having  the  same  effect,  they  must 
have  the  same  meaning.  They  are  synonymous,  and  have  been  always 
so  regarded.  In  The  St'ite  vs  H<jU>j,  (1  IJrev.  37,)  decided  in  1800, 
*by  Waties,  Bay,  Johnson,  Ramsey,  and  Trezivant,  it  was  said,  r^.^jg 
"  that  the  obvious  meaning  of  the  words  '  warrant  or  order'  in  the  L  -  -• 
sense  used  in  the  indictment,  cannot  be  fairly  misunderstood,  the  words 
being  evidently  intended  to  express  the  very  same  thing."  And  they 
lield,  although  in  that  case  they  were  used  disjunctively,  "  warrant  or 
order,"  yet  that  the  indictment  was  good.  It  is  clear,  beyond  all  doubt, 
if  they  mean  the  same  thing,  they  ought  to  be  laid  conjunctively,  and 
using  them  otherwise  might  be  objected  to. 

The  second  ground  objects  that  the  forged  instrument  is  described  as 
a  "paper  writing,"  when  it  is  partly  printed  and  partly  written.  There 
is  unquestionably  nothing  in  this  ground.     Au  instrument  signed  by  a 


158  CHARLESTON,  FEBRUARY,  1(S41.       VOL.  I.  [*2i2 

party  is,  in  legal  parlance,  the  paper  writing  of  snch  a  party.  It  is  his 
signature  to  it  which  gives  it  that  character,  and  not  the  body  of  the 
instrument.  In  a  declaration  on  a  note  of  hand,  it  is  described  as  a  note 
in  writing,  although  every  word,  e.xcept  the  signature,  may  be  in  print. 
So  of  a  bond  partly  written  and  partly  printed,  it  is  said  to  be  "  tiie 
Avriting  obligatory"  of  the  party  executing  it  The  manner  in  which  an 
instrument  forged  is  to  be  set  out  is  well  settled.  In  3  C.  L.  1040,  it  is 
said  "  every  indictment  for  forgery  must  set  forth  the  instrument  charged 
as  fictitious,  in  words  and  figures,  so  that  the  Court  may  be  al)le  to  judge 
from  the  record,  whether  it  is  an  instrument  in  respect  of  which  forgery 
can  be  committed."  Tiiis  rule  is  fully  complied  with  in  this  case,  for  the 
warrant  and  order  is  exactly  set  out.  The  same  author,  at  the  same 
page,  says  "though  it  is  sutficient  to  aver  that  the  defendant  forged  a 
certain  writing,  describing  it  truly,  and  setting  forth  its  tenor,  it  seems 
more  proper  to  lay  it  as  a  certain  paper  writing,  purporting  to  be  one 
that  the  statute  on  which  the  indictment  is  framed,  describes."  The 
instrument  in  this  case  is  described  in  the  very  words  used  in  this  case. 
I  have  looked  into  Wafe7~s^  case,  3  Brev.  (507,  An.,)  and  have  been  per- 
mitted to  examine  the  indictment  on  file  in  the  clerk's  office  ;  the  bank 
note  in  that  case  was  not  described  as  partly  printed  and  jiartly  written. 
That  indictment  wf.s  drawn  by  Mr.  Justice  Richardson,  then  Attorney- 
General,  and  the  prisoner  defended  by  Mr.  Wilson,  one  of  the  counsel 
for  the  prisoner  now  before  us.  No  objection  was  taken  to  the  indict- 
ment on  that  account.  The  only  case  in  which  I  have  observed  that  the 
*94^T  instrument  was  *described  as  partly  printed  and  partly  written,  is 
-'  the  case  oi  Rex  vs.  Wilcox,  1  Eng.  Crown  Ca.  50.)  In  that  case 
tlie  judgment  was  notwithstanding  arrested,  because  the  indictment 
did  not  state  what  the  instrument  was  of  which  the  forgery  was  alleged 
to  have  been  committed,  nor  how  the  party  signing  it  had  authority  to 
sign  it. 

'J'he  third  ground  insists  that  the  indictment  does  not  set  out  that  the 
party  whom  it  is  inteiided  to  defraud,  if  a  corporation,  was  in  the  United 
States,  or  within  this  State,  or  if  a  person,  was  resident  in  this  t^tate,  or 
within  the  United  States.  This  particularity  is  supposed  to  be  necessarv, 
under  the  Act  of  1801,  (2  Faust,  379,)  which  in  the  first  section  provides 
"that  if  any  person,  from  and  after  the  passing  of  this  Act,  shall,  within 
this  State,  falsely  make,  forge  or  counterfeit,  or  willingly  act  or  assist  in 
the  false  making,  forging  or  counterfeiting,  of  any  deed,  will,  testament, 
bond,  writing  ol)ligatory,  bill  of  exchange,  promissory  note  for  payment 
of  money  or  delivery  of  goods,  bank  note,  for  payment  of  money,  of  any 
incorponitcfl  or  unincorporated  bank  orcompany  within  this  State  or 
any  of  the  United  States,  or  any  endorsement  or  assignment  of  any  bill 
of  exchiiiige  or  promissory  note  for  payment  of  money,  or  of  any  bank 
note  fur  the  payment  of  money,  of  any  incorporated  or  unincorporated 
bank  or  company  within  this  State  or  any  of  the  United  States,  or  any 
nc(|uittnnce  or  receipt,  either  of  money  or  goods,  or  any  acceptance  of 
any  bill  of  exchange,  or  the  number  or  principal  sum  of  any  promissory 
note  or  bank  note,  fur  the  payment  of  money,  of  any  incorporated  or 
unincorporated  l)ank  or  company,  in  this  State  or  any  of  the  United 
States,  ()r  the  number  or  j«rincipal  sum  of  any  accountable  receipt  for  any 
note,  bill  or  other  security  for  the  payment  of  money,  or  any  warrant  or 


*243]  STATE   VS.   JONES.  159 

order  for  the  payment  of  money,  or  delivery  of  p:oods,  with  intention  to 
defraud  any  ])erson  or  persons  residinj^  or  beiiitj;  within  this  State  or  any 
of  tlie  United  States,  or  any  bank  or  company,  corporated  or  nnincor- 
])oratcd,  within  tliis  State  or  any  of  tlie  United  States,  or  the  President 
or  any  other  officer  of  any  such  bank  or  company,  tlien  every  such 
person,  beinj};  hiwfuliy  thereof  convicted,  shall  be  deemed  guilty  of  felony, 
and  shall  suffer  death,  as  a  felon,  without  benefit  of  clerg:y."  Two 
questions  here  arise,  under  this  Act ;  1st.  Is  it  necessary  to  set  out  the 
indictment  that  the  bank  or  person  intended  *to  be  defrauded,  is  r^c),. 
within  this  State,  or  some  other  of  the  United  States  ;  2nd.  Is  •-  •" 
the  Act  of  1801  a  repeal  of  the  Act  of  1736-7  ?  and  if  it  is  not,  are  not 
the  3d  and  5th  counts  good  under  it?  and  the  1st  count  under  the  Act 
of  1801  ?  admitting  it  to  require  that  the  bank  to  be  defrauded  should 
appear,  from  the  indictment,  to  be  in  this  State,  or  some  other  of  the 
United  States.  In  passing  upon  the  first  question,  I  would  first  remark 
that  on  examining  AVatcrs'  indictment,  it  seems  that  the  learned  attorney 
who  drew  it,  alleged  that  the  bank  note  then  forged,  was  so  forged  vvitli 
intent  to  defraud  an  incorporated  bank  within  this  State,  and  in  another 
count  a  person  within  this  State.  This  is  the  only  precedent  to  which  [ 
have  had  access,  and  as  that  offence  had  to  be  covered  by  the  Act  of  1801, 
or  not  be  punished  capitally,  I  have  no  doubt  it  was  so  cautiously  drawn 
from  the  decision  in  HouseaVs  case,  to  which  I  shall  presently  refer. 
Aly  brothers,  Evans  and  Earle,  and  Chancellor  Johnson,  who  long  filled 
the  office  of  Solicitors,  agree  that  no  such  particularity  was  resorted  to  by 
them.  In  Houseal's  case,  (2  Brev.  219,)  the  Judges  held  that  "the 
offences  charged  in  the  indictment,  are  not  pursuant  to  the  Act  of  As- 
sembly of  1801,  and  are  not  within  the  scope  or  intent  of  that  Act, 
because  the  persons  intended  to  be  defrauded  are  not  stated  to  be  within 
any  of  the  United  Slates."  This,  I  confess  is  a  decision  on  the  point 
now  before  us,  although  it  is  not,  perhaps  conclusive  authority,  inasmuch 
as  that  point  was  not  necessary  to  the  decision  of  the  cause.  Tlmt 
decision  out  of  the  way,  I  should  not  hesitate  to  say,  that  there  is  no 
necessity  to  set  out  that  the  bank  or  person  intended  to  be  defrauded  is 
within  the  State.  It  is  no  portion  of  the  definition  of  the  offence  ;  and 
when  a  forgery  is  charged  to  be  in  fraud  of  a  bank,  or  an  individual,  it  is 
to  be  inferred  that  they  are  within  the  State,  unless  tlie  contrary  be 
alleged.  If  the  proof  does  not  correspond  with  the  indictment,  as  under- 
stood or  expressed,  the  prisoner  would  be  acquitted.  But  I  yield  my 
own  judgment  to  that  decision,  and  it  is  therefore  necessary  to  incpiire 
whether  the  Act  of  1801  is  a  repeal  of  the  Act  of  1736-7.  Act  of 
1736-7,  sec.  3,  (P.  L.  147.)  The  latter  is  more  general  in  the  respect 
in  whicii  we -are  considering  it  than  the  former.  It  provides,  inter  alia, 
that  "  to  falsely  make,  forge  or  counterfeit  any  warrant  or  order  for  the 
payment  of  money  or  delivery  of  goods,  with  the  intention  to  defraud  any 
*person,"  shall  be  a  felony.  By  comparing  the  two  Acts,  it  will  r^j:,-)  ,=• 
be  found  that  that  part  of  the  Act  of  1801  which  relates  to  banks  ^ 
and  companies,  corporated  or  uncorporated,  is  not  within  the  Act  of 
1736-7  ;  and  that  the  Act  of  1801  is  more  restricted  as  to  the  person  to 
be  defrauded  than  the  Act  of  1736-7.  The  Act  of  1801  contains  no 
repealing  clause,  and  can  therefore,  only  be  a  repeal  of  the  former 
Act,  by  implication.     This  is  not  favored,  and  unless  there  was  some 


160  CHARLESTON,  FEBRUARY,  1841.      YOL.  I.  [*245 

contradictory  or  repugnant  provisions,  there  cannot  be  any  implication 
of  repeal.  There  is  nothing  of  this  kind  ;  the  two  Acts  may  well  stand 
together;  the  latter  applying  to  its  peculiar  subject,  and  the  former 
governing  those  falling  within  its  provisions.  They  cannot  be  construed 
in  pari  ^materia,  for  they  do  not  entirely  relate  to  the  same  subject 
matter.  This  point,  however,  was  expressly  adjudged  in  Ilouseal's  case, 
(2  Brev.  222,)  and  if  that  case  is  authority  for  the  precision  with  which 
the  offence  must  be  laid,  under  the  Act  of  1801,  it  must  also  be  for  the 
non-repeal  of  the  Act  of  1736-7.  In  it,  the  Judges  said,  it  does  not 
apiiear  to  us  that  these  two  Acts  are  repugnant  or  contradictory,  or  so 
inconsistent  as  that  they  may  not  well  stand  together.  The  latter,  to  be 
sure,  is  more  limited  and  confined  in  its  operation,  than  the  former ;  but 
there  does  not  seem  to  be  any  necessity  for  construing  this  latter  so  as  to 
operate  the  repeal  of  the  former  ;  nor  would  there  be  any  propriety  in  so 
doing.  The  Acts  of  Congress  of  1790  and  1819,  were  passed  on  the 
same  subject,  (piracy;)  they  differed  in  some  of  their  provisions  ;  they 
were  both  held  to  bo  in  force  ;  Klintock  was  adjudged  to  be  within  the 
Act  of  1790,  and  Smith  within  that  of  1819,  (5  Wheat.  144,  153.)  The 
Act  of  1736-7  being  in  force,  the  3d  and  5th  counts  are  so  framed  as  to 
bring  the  prisoner  within  its  provisions,  and,  as  was  ruled  in  Ilouseal's 
case,  his  conviction  on  those  counts  must  be  sustained  under  it. 

The  first  count,  however,  charges  the  forgery  to  be  with  intent  to  de- 
fraud the  Bank  of  Charleston,  South  Carolina,  and  this  must  be  sustained 
under  the  Act  of  1801,  or  fail.  I  think,  however,  that  this  count  is  suf- 
ficiently framed  to  be  supported  under  that  Act.  It  is  sufficient,  if  it 
appear  to  be  an  incorporated  bank  within  this  State.  The  Bank  is  de- 
scribed by  its  corporate  name,  the  Bank  of  Charleston,  South  Carolina, 
*«>ifi"l  ^'^'^'^'  sufficiently  shows  that  it  is  a  bank  within  this  '^State.  It 
■^  is,  too,  incorporated  by  a  public  Act,  and  we  are  judicially  to  take 
notice  and  be  informed  of  this  fact,  and  there  is,  therefore,  no  necessity 
for  more  than  the  designation  of  the  bank  by  its  name.  The  first  count 
is  therefore  sufficient. 

The  fourth  ground  contends  that  the  first  count  is  defective,  as  it 
alleges  the  intention  to  defraud  the  Bank  of  Charleston,  and  the  tenor  of 
the  forged  warrant  and  order  for  the  payment,  shows  that  it  was  made  to 
defraud  the  cashier.  There  is  nothing  in  this  ground.  The  intent  of  the 
forged  writing  is  to  withdraw  the  funds  of  the  supposed  signer  from  the 
bank,  and  this  makes  it  a  fraud  intended  upon  it.  The  cashier  is  a  mere 
officer  representing  the  bank,  and  a  i)ai)er  drawn  upon  him  as  such,  is 
drawn  upon  the  bank.  If  the  teller  had  paid  the  forged  warrant  or  order 
in  tiiis  cii.se,  tlie  Ijank  must  have  lost  the  credit  of  so  much  in  a  settlement 
with  .Mr.  'I'npper,  the  supposed  drawer.  It  may  be  that  the  bank  might 
have  comi»eihjd  the  officer  making  the  payment  to  refund,  and  tiius 
replace  its  hjss.  Still  this  docs  not  prevent  the  fraud  from  being  of  the 
bank  and  not  the  officer. 

The  ril'ih  gruuml  alleges  that  the  third  count  is  defective,  inasmuch  as 
it  supjto.ses  that  it  sets  out  the  forged  writing  as  ])uri)orting  to  be  of 
Tristram  Tupper,  when  the  tenor  shows  that  it  was  of  T.  Tupper.  This 
ground  was  framed  upon  the  fourth  ground,  which  was  sustained  as  fatal 
to  the  indictment,  in  llonscal's  case.  But  unfortunately  for  the  prisoner, 
his  ground  here  is  founded  in  mistake  ;  the  indictment  in  the  third  count 


*246]  SHAW   vs.    DAWSEY.  IGl 

does  not  set  out  the  paper  writing  as  purporting  to  be  the  warrant  and 
order  of  Tristram  Tupper,  but  as  purporting  to  be  a  warrant  and  order 
I'or  tlie  payment  of  money,  and  then  sets  out  in  Jicec  verba,  and  avers 
the  prisoner's  intention  to  be  to  defraud  Tristram  Tupper.  There  is  no 
variance  here,  and  the  count  is  well  framed. 

Tlie  sixth  ground  is  a  mere  variety  of  tlie  fifth,  and  was  intended  to 
apply  to  the  facts.  The  jury  found  that  the  paper  signed  T.  Tui)per, 
was  intended  to  represent  Tristram  Tupper,  and  thus  to  defraud  him,  and 
the  proof  too  well  sustains  their  conclusion. 

The  seventh  ground  supposes  there  was  no  proof  where  the  warrant 
and  ordei'  was  made.  It  is  only  necessary  to  read  and  understand  the 
report,  to  see  that  here  again  the  prisoner  *has  no  just  ground  of  r^..'),>r 
complaint.  Two  facts  were  ascertained  ;  it  purports  to  be  made  L 
in  Charleston,  and  the  prisoner  was  in  Charleston  at  its  date,  and  had  it 
in  possession.     These  were  enough  to  show  where  it  was  made. 

The  eighth  ground  supposes  there  was  error  in  saying  to  the  jury,  that 
if  the  prisoner  was  guilty  in  fact,  his  conviction  might  be  sustained  under 
the  Act  of  1736-7,  the  Act  of  1801,  or  at  common  law.  There  certainly 
cannot  be  any  doubt  upon  this,  as  a  legal  proposition,  but  as  it  is  ques- 
tioned, in  proof  of  its  accuracy,  I  will  refer  to  Ilouseal's  case,  (2  Brev., 
219,)  and  to  Foster's  case,  (3  McC,  442.)  The  })risoner's  motion  is 
dismissed. 

Evans,  Earle  and  Butlee,  JJ.,  concurred.  Gantt  and  Kichard- 
SON,  JJ.,  dissented. 

See  3  Rich.  172.     An. 


B.  F.  Siiaav  rs.  W.  J.  Dawsey. 

The  will  of  a  feme  covert  is  void  at  law,  and  the  Court  of  Common  Pleas,  acting 
as  a  Court  of  Appeals  from  the  Ordinary,  cannot  entertain  the  question  of  exe- 
cuting a  will  under  a  deed  of  settlement.  This  is  a  question  purely  for  the  Court 
of  Equity. 

Before  O'jSTeall,  J.,  at  Georgetown,  1840. 

This  case  was  an  appeal  from  the  Ordinary,  on  the  probate  of  the  will 
of  Elizabeth  Shaw.  iSIrs  Shaw  was  a  married  woman  when  she  exe- 
cuted her  will,  but  her  executors  claimed  that  under  and  by  virtue  of  a 
deed  of  settlement,  she  was  authorized  to  dispose  of  her  property  by  a 
will,  or  deed  in  nature  of  a  will,  and  the  Ordinary  sustained  the  will.  On 
the  case  coming  on  for  trial,  his  Honor  ruled  that  the  fact  that  testatrix 
was  a  feme  covert,  at  the  execution  of  the  will,  rendered  it  void  at  law, 
and  that  the  Court  of  Common  Pleas,  acting  as  a  Court  of  Ajipeals  from 
the  Ordinary,  could  not  entertain  the  '^question  of  her  executing  r*9  io 
a  will  under  a  settlement,  which  was  purely  a  question  for  the  L'-"*^ 
Court  of  Equity,  and  so  reversed  the  decree  of  the  Ordinary  without 
inquiry.  The  ground  of  my  decision  is  not  presented  by  this  brief.  The 
fifth  section  of  the  Act  of  1734,  (P.  L.,  139,)  has  the  following  provision  : 
"  Provided  now,  and  at  all  times,  that  any  will  or  testament,  made,  or 
to  be  made,  by  any  feme  covert,  idiot,  or  any  person  of  non-sane  memory, 
YoL  1—12 


162  CHARLESTON,  FEBRUARY,  1841.      YOL.  I.  [*248 

shall  uot  be  g-oocl  or  valid  in  law,  any  thing  hereinbefore  to  the  contrary 
notwithstanding-."  By  this,  it  seemed  to  me,  that  it  was  impossible  to 
set  up  the  will  of  a  feme  covert  as  such.  If  it  is  operative  at  all,  it  is  as 
the  mere  execution  of  a  power,  and  this  becomes  part  of  the  deed.  The 
Ordinary's  decree,  admitting  it  to  probate,  as  a  will,  was  ruled  to  be 
erroneous,  and  the  jury  found  against  the  bill. 

GROUND   OF    APPEAL. 

That  the  Act  of  the  Legislature  making  the  Court  of  Common  Pleas  an 
appeal  from  the  tribunal  of  the  Court  of  Ordinary,  by  necessary  implication 
has  clothed  it  with  all  the  powers  and  jurisdiction  of  the  Court  of  Ordinary, 
and  also  the  powers  necessary  and  proper  to  make  such  final'  decree  as  the 
nature  of  the  case  may  require ;  and  so  he  submits  the  powers  under  the  deed 
were  matters  for  the  consideration  of  the  Court. 

Curia,  i^er  O'jSTeall,  J.  In  England,  I  concede,  the  will  of  a  feme 
covert,  in  execution  of  a  power,  must  be  proved  in  the  Spiritual  Court, 
before  the  Court  of  Equity  will  read  it.  (Sag.  on  Po.,  329.  But  I  do  not 
understand  that  such  a  Court  has  original  jurisdiction  of  the  probate  of 
such  a  will.  It  is  only  when  such  a  paper  is  presented  to  the  Court  of 
Ecpiity,  that  it  is  sent  down  to  be  there  proved.  If,  however,  a  different 
practice  there  prevailed,  the  Act  of  1134,  (P.  L.,  139,)  compels  us  to 
adopt  it  here.  For  it  provides  "  that  any  will  or  testament  made,  or  to 
be  made,  by  a  feme  covert,  idiot,  or  any  person  of  non-sane  memory,  shall 
uot  be  good  or  valid  in  law,  any  thing  hereinbefore  to  the  contrary  not- 
withstanding." It  is  impossible  for  a  Law  Court  to  say  that  a  paper 
declared  by  an  Act  of  the  Legislature  to  be  void,  is  still  to  be  proved 
and  allowed  to  have  legal  effect.  It  can  neither  operate  as  a  will  or  tes- 
*24qi  t^^s"^^-  ^'^^  ^'1  equity,  it  will  be  allowed,  (if  it  has  iu  *other 
^  respects  the  legal  requisites,)  to  operate  as  an  execution  of  the 
power  contained  in  the  deed  of  marriage  settlement.  That  Court  may 
send  it  down  to  be  proved  before  the  Ordinary,  if  they  think  it  can  be 
regarded  as  an  execution  of  the  power. 

The  motion  is  dismissed. 

The  whole  Court  concurred. 

B.  F.  Hunt,  for  the  motion.     • ,  contra. 

See  Wrird  vs.  Glenn,  9  Rich.  127  ;  Hood  vs.  Arclier,  1  McC.  477  ;  Converse  vs.  Con- 
verse, 9  Rich.  Eq.  535.     An. 


0.  I).  Allen,  Ordinary,  vs.  Burton  and  IIarllee,  Administrators. 

The  Huretios  to  an  administration  bond  are  not  liable  to  the  heirs  at  law  for  the 
rent  of  laml  bolonj^'ing  to  the  estate  of  which  their  principal  was  the  administra- 
tor, under  the  special  circunistances. 

Before  Evans,  J.,  at  Barnwell,  Fall  Term,  1840. 

It  appeared  from  the  evidence  that  one  George  Bruton  died  many 
years  ago,  and  one  Charles  Dcwitt  administered  on  his  estate.  Benja- 
min Bruton,  the  defendant's  intestate,  was  one  of  Dewitt's  sureties  to  his 


'249] 


ALLEN    VS.    BURTON    AND    HARLLEE.  163 


administration  bond.  The  distributees  of  George  Bruton  filed  a  bill 
against  Dewitt  to  account.  The  accounts  were  made  up  by  the  Com- 
missioner, who  reported  a  large  balance  due  by  Dewitt  to  the  distributees 
of  George  Bruton.  The  report  was  confirmed,  and  this  action  was  on 
the  bond  to  the  Ordinary,  for  the  amount  of  the  decree.  On  examining 
the  Commissioner's  report,  it  appeared  that  the  Commissioner  had 
charged  Dewitt  with  the  rent  of  the  land  belonging  to  his  intestate's 
estate.  This  item  was  objected.  But  it  was  finally  agreed  the  plaintiff 
should  take  a  verdict  for  the  amount  of  the  decree,  including  the  land 
rent,  subject   to    the   opinion    of  the    Appeal    Court,  on   the    question 

^whether  the  security  on  the  administration  bond  was  liable  for  r^^-A 
..  •'  [*2o0 

Northrop,  (for  Bellinger, )  for  tlie  motion,  said,  the  only  question  for  the  Court 
was,  wliether  an  administrator  is  liable  for  the  rents  of  the  lands  of  his  intestate. 
All  the  authority  which  an  administrator  acquires  over  his  intestate's  real  estate 
is  derived  from  the  Ordinary.  He  contended  that  it  would  be  a  confusion  of  the 
offices  of  administrator  and  guardian,  if  the  one  was  permitted  to  interfere  with  the 
powers  of  the  other.     Cited  P.  L.  202  and  217. 

Tliore  was  a  distinction,  said  Mr.  N.,  between  guardians  and  administrators. 

If  the  administrator  is  not  liable  for  rent,  neither  can  his  surety  be,  3  McC.  417  ; 
1  Bail.  4U1. 

Patterson,  contra,  said,  at  common  law,  an  administrator  hnd  no  right  to  inter- 
fere with  the  real  estate  of  his  intestate  ;  but,  by  indirect  legislation,  we  have  gone 
far  towards  conferring  that  power,  by  the  Act  making  real  estate  liable  for  the  pay- 
njent  of  debts  in  the  liands  of  the  administrator.  At  common  law,  the  real  estate 
goes  to  the  heirs  at  law,  the  personal  estate  to  a  different  person.  Mr.  P.  con- 
tended that  in  the  Courts  of  Equity,  administrators  were  called  on  to  account  for 
rents,  and  the  sureties  should  be  made  liable  for  rents  collected  by  their  principal 
as  administrator,  or  legislation  should  be  had  on  the  subject. 

Northrop,  in  reply,  cited  2  Hill  Law  Rep.  581.  Unless  the  estate  be  in  debt,  the 
administrator  has  nothing  to  do  with  the  real  estate. 

Curia,  per  Evans,  J.  The  question  which  we  are  called  upon  to  de- 
cide in  this  case  is,  whether  the  securities  of  an  administrator  are  liable 
to  the  heirs  at  law,  for  rent  of  land  belonging  to  an  estate  of  which  their 
principal  was  the  administrator.  The  duties  of  an  administrator,  as  pre- 
scribed by  law,  seem  to  relate  entirely  to  the  personal  estate.  It  is,  as 
his  bond  speaks,  only  of  the  goods  and  chattels,  rights,  and  credits. 
Generally  speaking,  we  are  to  resort  entirely  to  the  contract  which 
creates  a  liability,  in  order  to  ascertain  what  that  liability  is. 
^Taking  this  as  our  guide,  it  would  seem  the  securities  do  not  r:jc9-, 
undertake  to  become  responsible  for  the  acts  of  their  principal  in  L 
relation  to  the  real  estate,  and  consequently  are  not  chargeable  with  his 
default  in  this  particular.  In  England  the  law  casts  the  land,  on  the 
death  of  the  owner,  immediately  on  the  heir.  The  administrator  never 
meddles  with  it.  In  this  country,  these  two  descriptions  of  property  are 
more  united.  Estates  generally  in  the  county  consist  of  land  and  negroes, 
and  they  cannot,  in  general,  be  disunited,  without  materially  impairing 
the  value  of  both  ;  hence,  it  is  almost  universal,  that  the  aclministrator 
continues  the  farm  as  he  found  it,  and  the  profits  arising  from  both  the 
land  and  the  personal  estate  come  into  his  hands  in  tlie  proceeds  of  the 
crops;  sometimes  he  hires  out  the  negroes  and  rents  the  land,  and  then 
the  land  rent  is  received  by  him  in  money.       How  far  his   securities 


164:  CHARLESTON,  FEBEUART,  1841.      VOL.  I.  [*251 

would  be  responsible  for  the  money  thus  received,  I  believe  has  never 
been  decided  ia  this  State.  I  do  not  propose  either  to  discuss  or  to 
decide  the  question.  It  is  not  involved  in  this  case.  Here  Dewitt  was 
one  of  the  heirs,  and  a  tenant  in  common  with  the  other.  He  was  also 
the  guardian  of  the  other  heir  ;(«)  his  use  of  the  land  is  referable  to  these 
characters,  rather  than  to  his  character  as  administrator,  and  it  appears 
from  the  decree  in  equity,  that  it  was  as  guardian  he  was  ordered  to  ac- 
count for  the  land  rent.  (6)  Under  these  circumstances  we  are  of  opinion 
the  defendants  are  not  liable  for  that  part  of  the  decree.  The  motion  for 
a  new  trial  is  therefore  granted,  unless  the  plaintiff  shall  release  so  much 
of  the  verdict  as  includes  the  land  rent  which  Dewitt  was  decreed  to 
pay  by  the  order  of  the  Court  of  Equity, 

The  whole  Court  concurred. 


*252]  *JoHN  Seigling  vs.  William  R.  Main. 

The  wife  of  a  tenant  is  a  competent  witness  between  the  Lindlord  and  a  third 

person. 
The  Act  of  1827  makes  the  action  of  trover,  commenced  under  its  provisions,  a 

proceeding  in  rem;  and  when  a  writ  is  issued  and  served,  the   chattel  is  in  the 

custody  of  tlie  haw  and  cannot  be  distrained  for  rent. 

Before  O'Xeall,  J.,  at  Charleston,  May  Term,  18^0. 

This  was  an  action  of  trover,  for  the  recovery  of  damages  for  the  con- 
version of  a  piano  forte. 

It  appeared  that  a  man  of  the  name  of  Taylor,  having  a  wife  then  alive 
married  a  Miss  Ilorton  ;  after  their  marriage  they  rented  a  house  belong- 
ing to  the  defendant.  They  lived  together  for  some  time,  when  Taylor 
abandoned  his  secon^  wife.  In  the  early  part  of  November,  Miss  Ilor- 
ton, (alias  Mrs.  Taylor,)  left  the  demised  premises  ;  there  was  theu 
twenty-four  dollars  rent  due,  in  payment  of  which  she  and  her  mother 
swore  that  the  defendant  accei)ted  a  bureau  worth  twenty-six  dollars. 
Wiicn  she  left  the  premises,  she  left  the  bureau  and  the  piano  forte  ;  the 
latter,  they  swore,  she  did  not  buy  from  the  plaintiff,  but  that  it  was,  by 
him  hired  to  her  at  four  dollars  per  month.  In  this  respect  she  was  cor- 
roborated by  the  plaintiff's  clerk,  Mr.  Ulrick,  who  proved  that  she  hired 
the  piano  forte  in  tiie  month  of  May.  She  was  contradicted  by  Tenent, 
Singletary  and  iMr.  Main,  the  son  of  the  defendant,  all  of  whom  proved 
that  tliey  iiad  heard  her  say  she  had  ])aid  one  hundred  and  seventy-live 
dollars  or  one  hundred  and  seventy  dollars  for  it,  and  young  Mr.  Main  and 
Singletary  I)oth  said,  that  she  said,  she  had  left  it  in  pawn  for  the  rent. 
Tlic  plaintiff  demanded  the  pianoforte  from  the  defendant;  he  refused 
to  give  it  up,  unless  twenty  dollars  rent  was  paid  ;  the  plaintiff  made  the 
alhdavit  required  by  the  Act  of  ]s27,(r)  and  issued  a  bail  writ,  in  trover, 
wliich  was  e.vecuted  l)y  the  defendant  entering  into  the  bail  bond  required 

(a)  See  2  Hill,  Ch.,  1570. 

(/>)  See  Supr.i,  !)1,  and  cases  in  order  there.     An. 

(c)  G  Stat.,  237.     An. 


^252] 


SEIGLING    VS.    MAIN.  165 


by  the  Act,  on  tlie  Cth  of  December,  1839;  subsequently  the  defendant 
executed  his  distress  warrant,  (whieli  he  had  previously  issued,)  and 
seized  and  sold  the  piano  forte  for  the  rent  which  he  alleged  to  be  in  ar- 
rear.  The  value  of  the  piano  forte  was  proved  to  be  from  one  hundred 
and  fifty  dollars  to  one  hundred  and  seventy  dollars.  When  Miss  Hor- 
ton,  (alias  Mrs.  Taylor,)  was  offered  as  a  witness,  she  was  objected  to  by 
the  defendant,  on  the  ground  that  she  was  the  wife  of  the  tenant.  I 
thought  she  was  admissible,  on  two  grounds,  1st.  according  to*  r^gpiq 
her  own  proof,  she  was  not  the 'wife  of  Taylor.  2nd.  If  she  was  L 
liis  wife,  still  she  was  competent.  For  he  had  no  interest  in  the  event  of 
this  suit.  The  recovery  here  by  the  plaintiff  would  not  be  evidence  for 
him,  that  there  was  no  rent  in  arrear.  If  the  defendant  succeeded,  then 
indeed  it  would  show,  that  the  rent  was  satisfied  by  the  sale  of  the  piano 
forte  ;  but  in  that  point  of  view,  Taylor,  would,  in  testifying  for  the 
plaintiff,  be  testifying  against  his  own  interest,  and  the  defendant  could 
not,  therefore,  object  to  him.  The  case  of  O^Farrell  vs.  Nance,  (2  Hill, 
484,)  is  full  to  the  point,  that  the  tenant  is  a  competent  witness,  between 
the  landlord  and  a  third  person.  If  the  husband  would  have  been  com- 
petent, it  followed  that  the  wife  must  also  be. 

The  jury  were  instructed,  1st,  to  enquire,  was  there  any  rent  in  arrear. 
If  Miss  Ilorton,  (alias  Mrs  Taylor,)  was  believed,  it  was  paid  by  the 
delivery  of  the  bureau.  The  question  of  her  credit  was  distinctly  sub- 
mitted to  the  jury,  and  her  testimony  was  contrasted  with  that  contra- 
dicting her.  If  there  was  no  rent  in  arrear,  it  would  be  only  necessary 
then  to  inquire — to  whom  did  the  piano  belong,  and  how  much  was  it 
worth  ?  Here  again,  the  case  depended  on  the  credit  of  Miss  Ilorton, 
(alias  Mrs.  Taylor,)  and  Mr.  Ulrick,  as  compared  with  the  testimony  of 
the  defendant's  son,  Messrs.  Tenent  and  Singletary.  If  the  jury  should 
conclude,  1st,  that  there  was  rent  in  arrear,  and  2d,  that  the  piano  forte 
was  the  property  of  the  plaintiff,  then  it  would  be  necessary  to  enquire, 
had  the  landlord  the  right  to  seize  and  sell  it  under  his  warrant  of  dis- 
tress, after  the  service  of  the  writ  in  trover  ?  I  thought  he  had  not. 
The  Act  of  '27  makes  the  action  of  trover,  commenced  under  its  pro- 
visions, a  proceeding  in  7'cni  (a)  So  soon,  therefore,  as  the  writ  was 
issued  and  served,  it  had  the  elfect  of  placing  the  chattel  in  the  custody 
of  the  law  ;  and  in  that  point  of  view,  it  was  not  the  subject  of  distress. 
It  was  a  mistake  to  suppose,  that  the  landlord  has  any  lien  on  the  goods 
of  a  third  person,  ujjon  the  demised  premises  ;  he  may,  while  they  remain, 
distrain  them  for  rent  arrear.  But  if  he  prevent  their  removal,  and  thus 
coni})cl  the  owner  to  have  them  on  the  premises,  he  could  not  take  ad- 
vantage of  his  own  wrong  and  distrain  them.  So,  too,  if  he  convert 
them  to  his  own  use,  he  cannot  afterwards  recur  to  his  own  right  of  dis- 
tress. In  any  of  these  points  of  view,  I  thought  the  plaintiff,  on  this 
question,  entitled  to  *recover.  The  jury  found  for  the  plaintiff,  r*.-):;! 
the  value  of  the  piano  forte,  with  interest  from  the  time  of  con-  ^ 
version. 

The  defendant  appeals,  on  the  annexed  grounds  : 

OROUNDS    OF    APPEAL. 

1.  His  Honor,  the  presiding  Judge,  refused  to  exclude  the  wife  of  the  tenant 
(a)  2  Sh.,  34  ;  1  Strob.,  239  ;  3  Hill,  12.     An. 


166  CHARLESTON,  FEBRUARY,  1841.      VOL.  L  [*254: 

but  permitted  her  to  testify  and  swear  off  the  debt  to  the  hindlord,  and  was 
therefore  interested. 

2.  His  Honor  erred,  in  charging  the  jury,  that  although  the  articles  dis- 
trained were  in  the  house  hired  by  the  tenant,  and  the  house  and  articles  in  the 
house  then  (at  the  time  of  the  demand)  in  possession  of  the  landlord,  there  was 
no  lien  existing  upon  the  articles,  and  the  levy  of  the  distress  warrant  could 
only  create  such  lien, 

3.  The  verdict  was  against  law  and  evidence. 

Wilson,  for  the  motion,  said  that  the  wife  of  the  tenant  was  an  incompetent 
witness  to  give  evidence  between  the  landlord  and  a  third  person.  He  cited  2 
Term  Rep.,  263;  4th  ib.,  678.  Trover,  he  contended,  was  an  action  of  trespass, 
and  not  a  proceeding  in  rem.  Until  the  rent  is  paid,  (when  due, )  the  lien  of  the 
landlord  is  unimpiiired.  The  lien  of  the  landlord  does  not  attach  without  a  distress 
warrant.     McWillie  vs.  Hudson,  1  Tread.  Con.  Eep.,  119  ;   3  C.  &  P.,  558. 

Rice,  contra,  contended  that  the  tenant  was  a  competent  witness  to  give 
evidence  between  the  landlord  and  a  third  person,  and  it  followed,  of  course,  that 
if  he  was,  the  wife  would  also  be.  Here  the  witness  was  not  the  wife  of  the 
tenant  and  could  not  be  excluded. 

Curia,  per  O'Neall,  J.  The  Court  is  satisfied  with  the  decision  of 
the  case  below. 

The  point  ruled  as  to  the  competency  of  the  witness,  and  the  instruc- 
tions of  the  presiding  Judge,  are  regarded  as  riglit  by  this  Court.  The 
motion  is  dismissed. 

The  whole  Court  concurred. 


CASES    AT    LAW 

AEGUEU  AND  DETERMINED  IN  THE 

COURT  OF  APPExllS  OF  SOUTH  CAROLINA. 

Columbb,  gTajj,  1841. 


JUDGES  PRESENT. 

HON.  RICHARD   GANTT,  HON.  JOSIAH   J.  EVANS, 

"      JOHN   S.  RICHARDSON,  "      ANDREW  PICKENS   BUTLER. 

"      JOHN   BOLTON   O'NEALL, 

Mr,  .Justice  Eakle  was  absent,  lioldiiig  tlie  Circuit  Court  of  Common  Pleas  in 
Charleston. 


^  Leroy   Secrist,  Sheriff,  vs.    H.    Twitty. 

A  Sheriff's  execution  book  is,  on  account  of  its  official  character,  received  in 
evidence,  as  proving  in  general  the  official  entries  contained  in  it.  So,  too,  an 
entry  on  an  execution  is  admissible  in  evidence  as  part  of  the  record. 

The  entry  of  the  sale  made  by  the  Sheriff,  containing  the  name  of  the  purchaser, 
is  as  effectual  a  signing,  as  if  the  Sheriff  had  written  the  name  of  the  purchaser 
to  a  formal  contract. 

Before  Earle,  J.,  at  Lancaster,  Fall  Term,  18-40. 

This  was  a  summary  process  to  recover  the  amount  or  price  of  a  tract 
of  land,  bid  off  at  sheriff's  sale  by  the  defendant. 

The  levy  on  the  lands  in  question,  with  a  sufficient  description,  was 
endorsed  on  the  execution,  under  the  hand  of  the  sheriff,  and  was  also 
entered  in  the  same  words  in  the  execution  book.  There  followed  an 
entry  in  these  words  :  "J.  11.  *Hudson's  land  bought  by  lliram  r^^.-p 
Twitty,  at  forty-two  dollars."  This  was  not  signed  by  the  sheriff.  ^  "'^ 
Hudson's  land  was  a  portion  of  the  land  levied  on  and  described  in  a  for- 
mer entry.  The  Court  thought  the  note  in  writing  insufficient,  under  the 
statute  of  frauds,  and  ordered  a  nonsuit. 

The  plaiutifl' appealed,  on  the  ground  : 

That  the  entry  in  the  execution  book,  in  connection  with  the  entries  on  the 
execution,  were  a  sufficient  note  in  handwriting,  within  the  provisious  of  the 
statute  of  frauds,  to  enable  the  plaintiff  to  recover. 


168  COLUMBIA,    MAY,    1841.      VOL.  I.  [*2o6 

Curia,  2yer  O'Neill,  J.  Before  the  Act  of  1839,  p.  42, (a)  there  was 
no  law  which  required  the  sheriff  to  keep  a  sales  book.  It  may  be  since 
the  passage  of  that  Act,  that  to  charge  a  purchaser,  at  sheriif's  sale,  the 
entry  must  be  found  in  the  book  thus  directed  to  be  kept.  The  sales  in 
these  cases  were  before  the  passage  of  that  Act,  and  must  be  decided 
without  any  i-eference  to  it. 

The  cases  of  Hall  vs.  O^Hanlon,  (2  Brev.  B.  46,)  and  of  Gardner  vs. 
Saundeis,  (ib.  180,)  in  supporting  sales  made  by  the  sheriff,  referred  to 
the  vendue  Act,  and  in  analogy  to  it,  it  was  said  that  "sheriff's  who  keep 
regular  books,  and  accounts  of  sales,  and  are  public  officers,  acting  under 
the  sanction  of  an  oath,  and  the  confidential  servants  of  the  community, 
may  be  fairly  considered  as  quasi  vendue  masters,  in  relation  to  their 
sales  under  execution."  In  Alinter  vs.  Dent,  (2  Bail.  292,)  it  was  held 
that  the  provisions  of  the  vendue  Act,  requiring  seven  days'  notice  of  a 
re-sale,  did  not  apply  to  sherift''s  sales.  From  that  case,  as  well  as  the 
case  of  Day  vs.  Hendrix,  decided  in  1830,  it  will  be  seen,  that  the  Court 
attached  no  other  importance  to  the  vendue  Act,  than  as  in  support  of 
the  common  law  rule,  that  an  auctioneer  is  an  agent  of  the  vendor  and 
vendee,  so  as  to  bind  them  by  the  entry  of  sale.  Ileadoios  vs.  Meadoivs, 
(3d  McOord,  458.)  In  the  Court  of  Equity,  the  sales  by  the  commis- 
sioner, or  mastei',  are  very  analogous  to  sales  made  by  the  sheriff  at  law. 
In  that  Court,  in  the  case  of  Gordon  vs.  Saunders  and  others,  it  was 
ruled,  that  where  the  commissioner  kept  no  sales  book,  a  sale  of  land 
made  by  him,  and  entered  upon  a  loose  slip  of  paper,  which  had  been 
^9-.^-,  lost,  should  be  enforced,  (2  McC.  C.  Tx.  164.)  That  *case  goes 
■^  much  further  than  the  cases  now  before  us.  For  here  the  entries 
are  found  in  the  shcriff''s  execution  book.  This  was  as  much  as  could  be 
asked,  even  under  the  vendue  Act ;  for  that  Act  only  requires  the  sale  to 
l)e  entered  in  the  books  of  the  vendue  master.  If  the  sheriff  is  a  vendue 
master,  his  execution  book,  before  1839,  was  quite  sufficient  for  his  entry 
of  sale.  But  I  think,  as  I  have  before  said,  that  no  other  importance 
should  be  attached  to  the  vendue  Act,  in  this  class  of  cases,  than  as  fur- 
nishing a  reason  why  we  should  support,  at  common  law,  sheriff's  sales, 
when  evidenced  by  a  written  entry  made  by  the  sheriff.  The  entry  of  the 
sale  on  the  execution  being  a  proper  return  to  it,  might,  I  think,  before 
1839,  be  very  properly  regarded  as  a  sufficient  entry  to  bind  the  purchaser. 
For  in  the  absence  of  any  other  law,  requiring  a  different  entry,  the  statute 
of  frauds  would  be  satisfied  by  such  an  one. 

I  do  not  think,  that  to  make  the  former  purchaser  liable,  the  re-sale 
was  required  to  be  entered.  It  is  sufficient  if  a  rc-salc  has  in  fact  been 
made,  and  complied  with  ;  for  the  purchaser's  liability  depends  on  the 
sale  to  himself;  if  that  be  suflicicntly  entered,  he  is  charged  upon  it. 
The  re-sale  is  only  resorted  to,  to  ascertain  the  damages  sustained  on  the 
sale  by  the  ]iurchaser's  failure  to  comply.  That  made,  and  complied  with, 
might  be  proved  even  without  an  entry.  The  note  or  memorandum 
rcfpiircd  by  the  statute,  is  sufficiently  signed,  if  the  name  of  the  party  to 
be  charged  is  signed  by  liimself,  or  by  some  one  authorized  by  him.  The 
entry  of  the  sale  made  I)y  the  sheriff,  containing  the  name  of  the  pur- 
chaser, is  as  efTcctual  a  signing,  as  if  the  sheriff  had  written  the  name  of 

(«)  11  Stat.,  37,  2  C.     An. 


*257]  CAIN   vs.    SPANN.  169 

the  purchaser  to  a  formal  contract  to  haj.  The  sheriff's  execution  book 
is,  on  account  of  its  official  character,  received  in  evidence,  as  proving, 
in  general,  the  official  entries  contained  in  it.  So,  too,  an  entry  on  an 
execution  is  admissible  in  evidence,  as  part  of  the  record. 

The  motions  to  set  aside  the  nonsuits  are  granted. 

The  whole  Court  concurred. 

Wricjld  and  JllcJIuUdn,  for  the  motion,  submitted  the  case,  ("after  read- 
ing the  brief)  without  argument. 

J.  Z.  Hammond,  contra,  was  absent. 

See  Christie  vs.  Simpson,  1  Rich.,  408.     Elfe  vs.  Gadsden,  2  Rich.,  378;  1  Strob., 
230.      Yongue  Ys.  Cathcart,  2  Strob.,  222;  3  Strob.,  30G.     An. 


*Mary  Cain,  Executrix,  vs.  R.  R.  Spann,  [*258 

He  who  takes  a  note,  after  it  is  due,  takes  it  subject  to  any  defence  which  the 
maker  can  set  np  against  the  payee ;  and  when  the  action  is  in  the  name  of  an 
endorser  or  bearer,  to  entitle  the  defendant  to  set  np,  by  way  of  discount,  any 
matter  between  him  and  the  payee,  he  must  prove  that  the  note  was  transferred 
after  due,  and  tliat  the  matter  of  defence  existed  between  them  at  the  time  of 
the  transfer. 

Before  Earle,  J.,  at  Sunipter,  Spring  Term,  1841. 

Assumpsit  on  a  note  of  hand  of  defendant,  dated  ITth  January,  183T, 
payable  to  John  Ramsay,  or  bearer,  for  $325  63,  due  at  one  day,  and 
transferred,  after  due,  to  the  plaintiff's  testator.  The  defendant  offered 
by  way  of  discount  under  notice,  a  note  drawn  by  Ramsay,  19th  Decem- 
ber, 1838,  payable  to  L.  M.  Spann,  or  bearer,  due  at  one  day,  and  trans- 
ferred to  defendant,  tth  January,  1839.  The  time  when  the  note  sued 
on  was  transferred  Ijy  Ramsay  to  the  plaintiff's  testator,  was  not  proved. 
It  was  still  in  Ramsay's  hands  as  late  as  the  25th  December,  1838,  and 
after  the  date  of  his  note  to  L.  M.  S[)ann,  There  was  no  proof  that  he 
retained  it,  when  the  latter  note  was  transferred  to  the  defendant ;  much 
less  was  there  any  proof  of  an  agreement,  or  understanding,  Ijetween 
Ramsay  and  the  defendant,  that  the  notes  should  be  discounted,  the  one 
against  the  other.  "Without  such  proof,  and  without  knowledge  on  the 
part  of  the  plaintiff''s  testator,  when  he  obtained  the  note  from  Ramsay, 
that  there  existed  any  counter  claim  by  way  of  discount,  I  held  that  the 
fact  of  the  note  sued  on  being  transferred  after  due,  had  no  other  effect 
than  to  enable  the  defendant  to  avail  himself  of  the  want  or  failure  of 
consideration,  or  of  some  equitable  defence  arising  out  of  the  transaction 
on  account  of  which  the  note  was  given,  and  did  not  enable  the  defend- 
ant to  set  up  by  way  of  discount,  any  other  separate  and  independent 
demand,  which  he  might  have  or  acquire  against  the  payee. 

The  ])laintift'  offered  in  evidence  a  letter  of  31st  January,  1840,  from 
the  defendant  to  the  plaintiff  herself,  or  her  testator,  asking  forbearance, 
and  promising  to  pay. 

The  jury,  under  the  instructions  of  the  Court,  found  for  the  plaintiff, 
disallowing  the  discount. 


no  COLUMBIA,   MAY,    1841.      VOL.  I.  [*258 

The  defendant  appeals  on  the  following  grounds  : 
*9-qi       *!•  Because  his  Honor  erred  in  charging  the  jury  that  the  note  of 
J  John  Ramsay,  the  payee  of  the  note  sued  upon,  could  not  be  set  up  as 
a  matter  of  discount  in  the  said  action. 

2.  Because  his  Honor  charged  the  jury  that,  even  admitting  the  plaintiff's 
testator  i-eceived  the  note  from  John  Ramsay,  after  the  note  of  Ramsay  had 
been  transferred  to  defendant,  the  defendant  could  not  set  it  up  as  a  discount. 

3.  Because  the  note  sued  upon,  having  been  transferred  after  due,  the 
defendant  had  a  right  to  the  discount  oflered,  and  his  Honor  should  have  so 
charged  the  jury, 

Moses  and  Miller,  for  tlie  motion,  contended  that  the  question  in  this  case  was, 
whether  the  discount  offered  by  defendant,  is  a  discount  under  the  discount  law. 

The  defendant  stands  in  the  same  position  that  he  would,  if  he  had  been  sued 
by  the  original  payee.  Cited  in  support,  3  Term  Rep.  82;  7  id.,  429,  Broivn  vs. 
Davis;  also  3  Kent,  91;  Chitty  on  Bills,  143;  McCaskill  vs.  Ballard,  decided  at 
May  Term,  1832,  at  Columbia;  7  Term  Rep.,  430;  5  John.,  118,  0' Callaghan  vs. 
Sawyer;  9  John.,  244.  The  endorser  takes  the  note  subject  to  all  the  equity  and 
all  the  discounts  that  the  party  might  offer  against  the  original  payee;  8  John., 
454;  Nixon  vs.  English,  3  McCord,  549;   Perry  vs.  Mays,  2  Bail.,  354. 

De  Saiissure  and  Garden,  contra.  The  question  arises  strictly  under  our  discount 
law,  and  we  contend  that  there  are  no  reported  cases  settling  the  question. 

It  does  not  appear  that  the  discount  note  was  traded  prior  to  the  transfer  of  the 
note  sued  upon.  Cited  Williams  ^-  Co.  vs.  Hare,  2  Hill,  483 ;  Loicry  vs.  Williamson, 
3  McCord,  247  and  249.  Cited  also,  the  Discount  Act.  Kenedy  and  wife  vs.  Cun- 
ningham, Cheves'  Rep.,  50. 

The  note  being  payable  to  bearer,  the  plaintiff  has  a  legal  estate  in  the  note  so 
soon  as  it  passes  into  his  possession. 

The  question  involved  in  the  cases  of  Nixon  vs.  Englisli,  3  McC,  549,  and  Perry 
vs.  Mays,  2  Bail.,  354,  do  not  apply  to  this  case.  If  Ramsay  was  the  plaintiff,  he 
might  offer  the  discount,  and  the  Court  would  sustain  it ;  but  the  note  having  been 
transferred  hy  Ramsay,  it  was  incompetent  for  the  holder  to  offer  it  as  a  discount 
to  the  note  in  question. 

*9rm  "^  Curia,  per  Evans,  J,  He  who  takes  a  note  after  it  is  clue, 
-*  takes  it  subject  to  any  defence  which  the  maker  can  set  up  against 
the  payee ;  and  according  to  my  understanding  of  the  law,  where  the 
action  is  in  the  name  of  an  endorser,  or  bearer,  to  entitle  the  defendant 
to  set  up  by  way  of  discount,  any  matter  between  him  and  the  payee,  he 
must  prove  that  the  note  was  transferred  after  due,  and  that  the  matter 
of  defence  existed  between  them  at  the  time  of  the  transfer.  The  defend- 
ant has  not  l>rought  himself  within  these  principles.  According  to  the 
report,  there  was  evidence  that  the  note  was  transferred  to  Cain  after  it 
was  due,  but  there  was  none  that  Spann  was  the  owner  of  the  note  offered 
in  discount,  at  the  time  his  note  was  transferred  to  the  plaintiff's  testator, 
Witliuut  such  proof,  we  think  the  presiding  judge  was  right  in  charging 
"that  the  fact  of  the  note  sued  on  being  transferred  after  due,  had  no 
other  effect  than  to  enable  the  defendant  to  avail  himself  of  the  want  of 
faihire  of  consideration,  or  of  some  equitable  defence  arising  out  of  the 
transaction  on  account  of  which  the  note  was  given."  The  grounds  of 
appeal  imply  that  the  presiding  judge  charged  the  jury,  that  the  discount 
could  not  be  allowed,  even  if  Spann  was  the  owner  of  it  at  the  time  his 
note  was  transferred  to  Cain.  It  is  likely,  from  the  report,  that  he  does 
entertain  tliat  opinion,  but  it  was  not  involved  in  the  facts  of  the  case, 
and  even  if  wrong,  furnishes  no  ground  for  a  new  trial.     It  could  have 


'2G0] 


CAIN    VS.    SPANN.  171 


been  no  more  than  an  incidental  expression  of  an  opinion  on  a  question 
not  involved  in  the  case. 

I  have  assumed,  in  stating  the  law  as  applicahle  to  this  case,  (a)  that 
it  devolved  upon  the  defendant  to  prove  the  facts  which  entitle  him  to 
liis  defence— the  transfer  of  the  note  sued  on,  after  it  was  due,  and  that 
at  the  time  of  the  transfer,  he  was  the  owner  of  Ramsay's  note  to  L.  M. 
Spann.  I  have  always  so  held  on  the  circuit,  and  supposed  it  well  set- 
tled and  understood  by  the  profession,  but  as  doubt  has  been  expressed 
on  the  sul)ject,  I  will  endeavor  to  illustrate  it.  In  the  ordinary  mode  of 
declaring?  on  a  note,  nothinf;^  appears  on  the  record  that  the  note  was  not 
transferred  otherwise  than  in  the  regular  course  of  trade,  before  it  was 
due.  The  plaintiff  is  bound  to  prove  no  more  than  the  making  and 
transfer  of  the  note.  It  was  never  heard  of,  that  he  was  bound  to  prove 
when  he  became  the  owner  of  the  note.  Upon  the  proof  of  the  making 
*and  transfer  of  the  note,  the  plaintiff  is  pr'ima  facie  entitled  to  r^.:)p^ 
recover.  His  action  can  only  be  defeated,  by  showing  some  de-  L 
fence  on  the  part  of  the  defendant.  By  the  rules  of  evidence,  he  who 
affirms  a  proposition,  is  bound  to  prove  it.  Spann,  by  his  discount, 
affirms  that  Ramsay  owes  him,  and  that  he  is  entitled  to  set  off  Ramsay's 
debt  against  the  plaintiff's  demand.  To  do  this,  he  must  make  out  by 
proof  everything  necessary  to  his  defence.  A  discount  is  a  cross  action,  (6) 
in  which  the  defendant  is  the  actor,  and  by  him  everything  must  lie  proved 
necessary  to  maintain  his  cross  action.  It  was  not  enough  to  show  that 
Ramsay  was  indebted  to  him  at  the  time  of  the  trial,  by  the  production 
of  the  note,  but  he  must  prove  there  were  mutual  debts  subsisting  between 
them  at  the  same  time ;  that  is,  that  Ramsay  was  indebted  to  him  the 
note  offered  in  discount,  at  the  same  time  that  he  owed  Ramsay  the  note 
which  was  transferred  to  Cain.  If  Spann  got  the  note  of  Ramsay,  after 
liis  own  note  had  been  transferred,  then  the  debts  were  not  mutual,  and 
cannot  be  set  off,  one  against  the  other. 

The  defendant  having  failed  to  make  this  proof,  his  discount  cannot 
be  allowed,  and  the  motion  is  dismissed. 

O'Neall  and  Butler,  JJ.,  concurred. 

Richardson,  J.,  dissenting. — What  is  the  principle  of  law  upon  which 
the  Judge  charged  the  jury?  Upon  that  principle,  whatever  it  was,  the 
verdict  is  placed,  and  can  stand  only  if  the  principle  be  correct.  The 
Judge  states  the  case  as  follows:  "Assumpsit  on  a  note  of  hand,  of 
defendant,  dated  Hth  January,  183T,  payable  to  John  Ramsay,  or 
bearer,  for  S325  63,  due  at  one  day,  and  transferred,  after  due,  to 
plaintiff's  testator.  The  defendant  offered,  by  way  of  discount,  under 
notice,  a  note  drawn  by  Ramsay,  19th  December,  1838,  payable  to  L. 
]M.  Spann,  or  bearer,  due  at  one  day,  and  transferred  to  the  defendant, 
Tth  January,  1839.  The  time  when  the  note  sued  on  was  transferred 
by  Ramsay  to  the  plaintiff's  testator,  was  not  proved.  It  was  still  in 
Ramsay's  hands  as  late  as  the  25th  December,  1838,  and  six  days  after 
the  date  of  his  note  to  L.  M.  Spann.  There  was  no  proof  that  he 
retained  it,  when  the  latter  note  was  transferred  to  the  defendant;  much 
less  was  there  any  proof  of  an  agreement  or  understanding  between 

(a)  See  H  Rich.,  381,  Jeivry  vs.  Strauss.     An. 
(6)  Sup.  29.     All. 


172  COLUMBIA,   MAT,    1841.      YOL.  I.  [*261 

*c)C9l  Ramsay  and  the  defendant,  that  the  notes  shoukl  be  discounted,* 
"  "-^  the  one  against  the  other.  Without  such  proof,  and  without 
knowledge  on  the  part  of  plaintiff's  testator,  when  he  obtained  the  note 
from  Ramsay,  that  there  existed  any  counter  claim  by  way  of  discount,  I 
held,  that  the  fact  of  the  note  sued  on,  being  transferred  after  due,  had 
no  other  effect  than  to  enable  the  defendant  to  avail  himself  of  the  want 
or  failure  of  consideration,  or  of  some  equitable  defence  arising  out  of 
the  transaction  on  account  of  which  the  note  was  given,  and  did  not 
enable  the  defendant  to  set  up,  by  way  of  discount,  any  other  separate 
and  independent  demand  which  he  might  have  or  acquire  against  the 
payee. 

"  The  plaintiff  offered  in  evidence,  a  letter  of  31st  January,  1840,  from 
the  defendant  to  the  plaintiff  herself,  or  her  testator,  asking  forbearance, 
and  promising  to  pay." 

It  is  plain  that  the  case  presented  this  question  of  law :  Was  it  neces- 
sary for  Spann  to  prove  that,  at  the  date  of  his  discount,  (7th  January, 
1839,)  Ramsay  still  retained  his  note?  or  was  the  time  when  Ramsay 
transferred  that  note  to  Cain,  a  question  for  the  jury,  under  attending 
circumstances  ?  I  maintain  that  the  jury  alone  should  have  decided  the 
fact  from  the  circumstances. 

But  the  charge  to  the  jury  presupposes  that  no  defence  can  be  set  up, 
but  such  as  was  intrinsic  to  the  note,  or  would  arise  out  of  the  equity 
of  that  single  transaction ;  unless  by  agreement  with  or  notice  to  the 
endorsee,  or  unless  it  be  proved  that  Ramsay  still  held  Spann's  note,  at 
the  time  Spann  took  the  transfer  of  Ramsay's  note.  This  would  exclude, 
of  course,  all  discount,  and  balancing  of  accounts,  however  just,  between 
the  maker,  (Spann  the  payee,  and  J.  Ramsay,)  as  extrinsic  to  the  matter 
of  the  note,  tinless  Spann  proved  expressly,  that  his  note  was  in  the 
hands  of  Ramsay  on  the  7th  of  January,  1839. 

Rut,  is  this  the  proper  principle  ?  The  purport  of  the  endorsement  of 
a  note  already  due,  is  that  of  an  order  to  pay  the  money  to  the  endorsee; 
which  order,  the  maker  has,  by  virtue  of  his  note,  already  accepted.  But 
only  to  the  extent  of  his  true  indebtedness  at  the  time  of  the  endorsement. 
It  amounts  to  the  acceptance  of  a  bill,  if  so  mucli  be  due  the  drawer: 
and  the  note  is  to  be  settled  by  the  adjustment  of  their  mutual  accounts, 
to  be  made  with  the  endorsee,  instead  of  the  payee.  Where  a  negotiable 
*2C31  ^^^^  '^  endorsed  by  the  payee,  *before  due,  the  maker  is  confined 
to  the  written  terms  of  his  note.  Whatever  be  his  counter 
demand  upon  the  payee,  the  note  has  become  his  bill  of  credit,  for  so 
much  money,  which  he  must  pay  to  the  endorsee,  without  abatement. 

But,  whenever  the  note  has  been  endorsed  after  due,  the  endorsee 
receives  it  upon  the  faith  and  credit  of  the  endorser  alone,  and  the  maker 
may  sot  up  any  defence  that  he  could  have  done  against  the  payee  at  the 
time  of  transfer.  Williams;  rfi  Co.  vs.  Hare,  (2  Hill,  483;)  3  terra,  82; 
7  T.  420;  Chitty,  143;  3  Kent,  91;  3  McC.  549;  2  Bail.  354.  The 
true  inrpiiry,  then,  in  the  case,  should  have  been,  whether  the  discount  of 
the  defendant  would  have  been  good  and  available  against  John  Ram- 
say at  the  time  of  the  transfer.  Suppose,  for  example,  the  endorsee, 
upon  receiving  the  note  from  John  Ramsay,  and  ignorant  of  any  dis- 
count, ami,  as  the  fact  was,  without  any  notice  or  agreement,  had  called 
on  the  maker  (Spann)  for  payment;  and  Spaun  had  presented  Kauisay's 


*263] 


HARPER    VS.    SCUDDT.  113 


note,  or  tlic  note  and  the  balance  in  money,  would  not  Spann's  note  have 
been  paid  in  full  ?  or  pro  tanto  according  to  liis  tender?  And,  for  the 
purposes  of  the  charge  to  the  jury,  this  was  substantially  the  case  before 
the  Court.  For  the  jury  were  to  decide,  whether  Spann  received  Ratn- 
say's  note  in  due  time,  to  render  it  available  against  the  endorsee,  and 
could  have  so  presented  it.  This  should  have  been  the  question.  And 
Spann's  subsequent  letter  of  olst  January,  1840,  may,  very  possibly,  have 
indicated  the  fact  against  him,  But  that  remains  to  be  tried  by  the  jury. 
If  this  be  not  the  true  question,  then  any  bank  may  sue  A,  upon  his 
note,  endorsed  by  another  bank,  after  due,  and  A  cannot  bring  in  dis- 
count the  bills  of  the  endorsing  bank,  to  meet  his  own  note ;  and,  if  so, 
any  broken  bank  has  only  to  let  its  discounted  notes  become  due,  endorse 
them  over  for  value  at  a  time  unspecified,  and  the  makers  cannot  dis- 
count the  bills  of  such  bank,  collected  for  the  purpose  of  paying  these 
very  notes,  unless  the  makers  can  also  prove  the  precise  time  when  their 
own  notes  had  been  endorsed.  In  the  case  before  us,  if  Cain  truly  held 
Spann's  note  before  the  7th  of  January,  he  could  have  i)roved  the  fact, 
by  showing  that  he  had  the  note  in  possession.  But  Si)ann  could  only 
disprove  it  by  circumstances  adduced,  and  leave  the  presumption  to  the 
jury.  In  such  case,  the  notes  should,  or  at  least,  may,  discount  each 
*other,  just  as  if  Spann's  note  remained  in  the  hands  of  llamsay,  ri^c^r,. 
unless  it  appear  that  his  note  had  been  transferred  to  Cain  before  L  "^ 
the  7th  of  January.  If  it  be  not  so,  then  Cain  took  the  dishonored  note 
upon  the  credit,  not  of  the  endorser,  but  the  maker,  which  reverses  the 
law  of  the  case,  (see  3  Term,  82,)  and  would  throw  the  burden  of  express 
proof  upon  the  defendant,  who  had  only  undertaken  to  pay  what  he  owed 
Ramsay  at  the  time  of  the  transfer  to  Cain,  It  is  unnecessary  to  go  so 
far  as  to  say,  that  after  Si)ann  proved  that  Eamsay  held  the  note  as  late 
as  the  25th  December,  1838,  at  least,  the  burden  of  proving  that  Cain 
received  it  before  the  7th  January,  fell  upon  the  plaintiff.  But  I  do  con- 
ceive it  was  the  very  point  of  the  case,  and  for  the  jury  to  decide,  under 
the  facts,  before  the  Court;  and  that,  therefore,  there  ought  to  be  a  new 
trial,  for  error  in  the  charge,  in  supposing  that  the  burden  lay  altogether 
upon  the  defendant. 

Gannt,  J.,  concurred. 


J.  A.  IIarper  vs.  J,  W.  SCUDDY. 

There  is  nothing  in  the  attachment  law,  which  precludes  a  defendant  from  availing 
himself,  (on  a  motion,)  of  any  defect- or  irregularity  in  the  process  of  attach- 
ment. 

Before  Evans,  J.,  at  Abbeville,  Spring  Term,  1841. 

Tliis  was  a  domestic  attachment,  issued  by  a  magistrate,  and  directed 
to  the  Sherij/  of  Abbeville  district.  It  was  made  returnable  on  the  2d 
Monday  in  March.  The  Court  sits  on  the  3d  Monday.  A  motion  was 
made  to  set  it  aside,  on  the  ground  that  it  should  have  been  directed  to 


174  COLUMBIA,    MAY,    1841.      VOL.  I.  [*264 

^g„--,  all  and  singular  the  *sherifrs  of  the  State,  and  was  not  returnable 
' "  -J  to  any  terni  of  the  Court.  The  motion  was  granted  ;  and' the  plain- 
tiff appeals : 

1.  Because  Ins  FTonor  erred  in  holding  that  the  defendant  in  attachment,  by 
motion  to  the  Court,  without  appearance,  by  special  bail,  to  the  action,  may 
take  advantage  of  a  mere  irregularity  in  the  proceedings. 

2.  Becausehis  Honor  held  that  the  defendant  being  required  to  appear  the 
second  instead  of  the  third  Monday  in  March,  was  a  defect  which  rendered  the 
proceedings  void,  and  showed  that  the  Court  had  no  jurisdiction. 

Wilson,  for  the  Biotion,  cited  Acts  1839,  (a)  and  contended  that  there  was  no 
defect  in  the  process.  Act  89;  2  Brev.  1G8.  It  would  be  good  at  the  nest  term 
after  the  return. 

Irregularity  or  error  in  an  attachment,  cannot  be  taken  advantage  of  by  motion. 
It  must  be  by  special  plea  and  appearance.  Harp.  Rep.  368,  Acock  vs.  Linn  ^• 
Lanchdoicn  ;  3  Cliitty's  Genl.  Practice,  74  ;  Clieves'  Eep.  5,  6. 

The  defendant  is  no  party  so  long  as  the  attachment  is  conliiied  to  his  goods. 

Burt,  contra. 

Cwrm,  per  Evans,  J.  In  this  case  a  domestic  attachment  was  set 
aside  on  the  ground  that  it  was  made  returnable  to  the  next  Court  of 
Common  Pleas,  to  be  holden  at  Abbeville  court  house  oa  the  second 
Monday  in  March.  By  law,  the  Court  of  Abbeville  sits  on  the  third 
Monday.  There  can  be  no  doubt  that,  in  ordinary  cases,  this  objection 
is  fatal,  and  that  the  service  would  be  set  aside  on  motion.  But  it  is 
supposed  because  this  is  an  attachment,  a  different  rule  is  to  prevail. 
The  grounds  of  appeal  assume  that  the  defendant  cannot  be  heard  in 
Court,  until  he  appears  and  dissolves  the  attachment  by  giving  special 
bail.  If  this  proposition  be  true,  then  he  who  is  made  a  party  in  Court, 
by  attaching  his  property,  is  shut  out  from  any  of  those  exceptions  of 
which  adcanlage  van  only  be  taken  by  motion,  for  when  he  appears,  his 
mouth  is  closed  as  to  any  irregularily  in  the  process,  be  it  ever  so  great. 
;^cjpp-|  *There  is  nothing  in  the  attachment  laws  which  admits  of  any 
^  such  construction.  The  attachment  issues,  because  process  cannot 
be  served  i)crsonally,  or  by  leaving  a  copy,  and  by  attaching  his  goods 
instead  of  his  ))erson,  the  defendant  is  made  a  party  in  Court ;  but  I  do 
not  fuid  anything  in  the  attachment  Acts  which  takes  from  him  the 
privilege  of  other  defendants,  except  that  he  cannot  have  his  property 
restored,  or  dissolve  the  attachment,  otherwise  than  by  appearance  and 
special  bail.  In  the  construction  of  these  Acts,  our  Courts  have  gone  no 
further  than  to  say,  they  will  not  hear  such  objections  from  the  garnishees 
or  strangers.  To  this  effect  the  case  of  i'Wer  vs.  Jone.s,  (1  McC.  116,) 
Cumberford  vs.  Uall,  (1  McC.  845,)  McBryde  vs.  Floyd,  (2  Bailey, 
20n,)  Chambers  vs.  MvKee,  (1  Ilill,  229.) 

In  none  of  these,  is  the  right  of  the  defendant  to  except  to  the  irregu- 
larily denied,  and  in  some  of  them  it  is  expressly  recognized. 

The  motion  to  reverse  the  decision  of  the  Circuit  Court  is  refused. 

■^riie  whole  Court  concurred. 

!?oo  infra,  AW  ;  4  Ktrob.  290  ;  4  Kich.  OGl ;  5  Rich.  G4,  478,  as  to  Mondau ;  2  McM. 
339.     An. 

(a)  11  Stat.  18,  0« ;  7  Stat.  254,  ?§  3,  4.     An. 


^267]  MITCHELL    &   CO.    VS.    m']5EE    &    IRVIN.  175 


*Andrew  Mitchell  &  Co.  vs.  McBee  &  Irvin.         [=^2G7 

Where  tlie  vendor  sends  goods,  with  his  price  marked  upon  them,  and  tlicy  are 
accepted  by  the  vendee,  the  law  will  imply  that  they  were  taken  on  the  vendor's 
terms  ;  unless  it  should  appear  otherwise,  from  the  course  of  jirevious  dealing 
between  the  same  parties,  or  from  some  custom  with  which  both  were  acquainted. 

Before  Gantt,  J.,  at  Greeuvillo,  Spring  Term,  1841. 

A  suggestion  of  fraud  to  a  return  made  by  a  garnishee,  in  a  case  of 
attaclunent.  Tlie  following  statement  of  facts  appears  from  the  report  of 
the  Circuit  Judge. 

McBee  &  Irvin,  co-partners  in  trade,  as  merchants,  sent  an  order  for 
goods  to  a  merchant  in  New  York,  by  the  name  of  Purdy.  Certain 
goods  were  sent  on  by  Purdy.  Shortly  after  the  arrival  of  the  goods, 
the  house  of  Andrew  Mitchell  &  Co.,  merchants  of  New  York,  sued  out 
an  attachment  against  Purdy,  a  copy  of  which  was  served  on  the  firm  of 
McBee  &  Irvin.  McBee  &  Irvin,  soon  after  the  arrival  of  the  goods, 
addressed  a  letter  to  Purdy,  stating  that  some  of  the  goods  forwarded 
were  such  as  were  not  embraced  in  their  order  to  him,  and  such  as  were 
contained  in  their  order  were  charged  at  too  high  a  rate.  Purdy,  on 
the  receipt  of  the  letter,  wrote  to  Mr.  Nicol,  a  correct  and  regular  bred 
merchant  of  the  village  of  Greenville,  requesting  him  to  call  on  McBee 
&  Irvin,  and  effect  a  settlement  with  them,  which  Mr.  Nicol  stated  could 
have  been  made  but  for  the  attachment  which  had  been  served. 

In  Purdy's  letter  to  Nicol,  he  did  not  say  that  the  goods  ordered  had 
not  been  charged  too  high,  nor  did  he  deny  that  in  the  invoice  of  goods 
sent,  articles  were  inserted  which  had  not  been  ordered.  On  these  sub- 
jects he  was  silent.  The  authority  given  to  Nicol,  by  Purdy,  to  effect 
a  settlement  with  McBee  &  Irvin,  and  to  take  less  than  what  the  goods 
were  charged  at,  carried  with  it  a  tacit  admission  that  the  complaints  of 
McBee  &  Irvin  were  well  founded. 

Irvin,  the  garnishee,  made  his  return  to  the  attachment  served  on  the 
house  of  which  he  was  a  member  :  to  this  return  there  was  a  suggestion 
of  fraud,  and  an  issue  made  up. 

♦Application  was  made,  in  open  court,  before  the  trial  was  r-^.)f>Q 
proceeded  in,  to  amend  the  return,  by  the  insertion  of  two  small  L 
articles  which  had  been  overlooked  and  omitted  to  be  inserted  by  mis- 
take. I  thought  the  application  most  reasonable,  and  did  not  hesitate  to 
allow  the  amendment  to  be  made,  although  strenuously  opposed  by  the 
counsel  for  the  plaintiff's  in  attachment. 

A  bill  of  particulars  had  been  made  out  by  the  house  of  McBee  & 
Irvin,  which  was  submitted  to  the  inspection  of  merchants,  and  who 
deemed  the  charges  therein  such  as  were  correct  and  proper.  The 
general  scope  of  the  evidence  went  to  show  the  truth  of  the  fact  that 
many  of  the  articles  had  been  too  highly  charged  for. 

I  saw  nothing  in  the  evidence  that  would  justify  the  conclusion  that  the 
return  of  the  garnishee  was  fraudulent,  or  otherwise  than  what  the  prin- 
ciples of  justice  and  law  recognized.  My  charge  to  the  jury  corresponded 
with  this  view  of  the  case,  and  the  jury  made  a  deduction,  which  ap- 
peared to  me  to  be  rational  and  proper,  and  well  supported  by  the  testi- 
money. 


176  COLUMBIA,    MAT,    1841.      VOL.  I.  [*268 

The  grounds  of  appeal  consist,  1st  In  the  Court  having  granted  leave 
to  amend  the  return  of  the  garnishees.  The  law  would  be  converted  into 
an  engine  of  oppression,  if  such  an  application,  founded  on  principles  of 
honesty  and  correctness,  could  not  be  received  and  acted  on. 

On  the  first  ground  for  a  new  trial,  I  did  not  think  that  McBee  & 
Irvin  were  bound  by  force  of  the  attachment,  to  submit  to  the  gross  im- 
position attempted  to  be  practiced  upon  them,  either  by  Purdy  or  certain 
plaintiffs  in  attachment.  On  the  second  ground,  I  have  only  to  observe 
that  the  objection  grows  out  of  testimony  which  was  introduced  by  the 
counsel  for  the  plaintiifs  in  attachment,  (the  evidence  of  Nicol,)  and  was 
clearly  proper  for  the  consideration  of  the  jury.  The  attachment  which 
had  been  levied  neither  destroyed  the  competency  or  credibility  of  Purdy 
as  a  witness. 

His  Honor  will  take  notice  that  we  will,  at  the  next  Court  of  Appeals,  move 
to  reverse  his  order,  granting  leave  to  amend,  without  paying  costs,  after  issue 
joined  ;  and  for  a  new  trial,  on  the  following  grounds  : 

*9f  Ql       *^-  I^scause  his  Honor  charged  the  jury  that  although  the  defendants 
"     J  did  receive  and  appropriate  the  goods  to  their  use,  with  a  full  knowledge 
of  the  prices  charged  for  them,  they  were  not  bound  to  pay  those  prices,  but 
might  take  them  at  the  valuation  of  the  witnessps. 

2.  Because  his  Honor  permitted  the  declarations  of  H.  Purdy,  the  absent 
debtor,  made  after  the  execution  of  the  writ  of  attachment,  to  go  to  the  jury ; 
and  because  he  told  the  jury,  the  affidavit  of  the  respectable  firm  of  McBee  & 
Irvin,  was  sulficient  to  satisfy  them  the  return  was  not  false,  and  to  find  their 
return  false,  would  be  e(|ual  to  finding  them  guilty  of  perjury. 

3.  Because  the  verdict  is  contrary  to  law  and  evidence. 

Clioice,  for  motion,  cited,  2  Starkie  Ev.  878,  note ;  Id.  877 ;  4  Esj).  Rep.  95, 
letter  C;  1  Stark.  257. 

A  contract  cannot  be  rescinded  in  part.  Chitty  on  Cent.  275-76  ;  Saunders  on 
Pleading,  544  ;  2  Bail.  4,  Robison  vs.  Jones. 

D.  F.  Perry,  contra,  cited  1  Rice's  Dig.  80.     A  garnishee  may  amend  his  return. 

Cwn'a  per  Butler,  J.  In  addition  to  the  facts  stated  in  the  report, 
it  was  admitted  in  the  argument  of  this  case,  that  defendants  were 
opening  the  goods  when  the  attachment  was  served  on  them.  Of  course, 
they  then  had  it  in  their  power  to  refuse  to  take  such  goods  as  were  not 
ordered,  and  others  charged  at  higher  prices  than  they  were  willing  to 
give.  Instead  of  doing  this,  and  giving  notice  to  Purdy  of  their  ol)jec- 
lion  and  refusal  to  accejjt  the  good,  they  received  and  appropriated 
them.  Some  days  aiterwards,  but  when  the  rights  of  the  })arties  were 
fixed  under  the  contract,  they  wrote  to  Purdy,  intimating  their  dissatis- 
faction. By  their  conduct  they  made  themselves  parties  to  a  contest 
whicli  they  might  have  left  with  the  ])laiutiffs  and  Purdy,  and  have 
rendered  themselves  accountable  for  the  value  of  the  goods,  under  the 
terms  of  tlie  contract  l)etween  themselves  and  Purdy.  They  have  volun- 
tarily assumed  a  jiosition  which  they  could  well  have  avoided,  for  they 
could  liavc  restricted  their  liability  to  pay  only  for  the  goods  which  they 
^g.,^-.  had  ordered,  and  wliich  they  *were  willing  to  receive  at  the  prices 
"'  -I  specified,  leaving  the  others  in  the  hands  of  the  sheriff,  to  be  dis- 
posed of  under  the  order  and  judgment  of  the  Court.  Having  accepted 
all  the  goods,  the  defendants  have  given  to  the  plaintiifs  the  power  to 
insist  upon  and  enforce  Purdy's  rights,  whatever  they  were  at  the  time 


*2'?0]  MITCHELL    &    CO.    VS.    m'bEE    &    IRVIN.  177 

the  goods  were  received  ;  and  it  was  not  in  Purdy's  power  to  defeat 
these  rights,  by  any  arrangement,  which  he  niiglit  chose  to  enter  into  with 
a  view  to  prejudice  the  plaintiti's.  By  tlie  voluntary  act  of  the  defendants, 
the  plaintiffs  are  placed  in  a  situation  in  which  they  can  insist  on  their 
absent  debtor's  strict  legal  rights.  The  question  is,  what  are  these 
rights,  by  the  legal  operation  of  the  contract  under  which  the  goods  were 
received  ?  The  vendor  sent  them  on  with  their  prices  specified  in  the 
invoice  that  accompanied  them.  One  party  says,  in'  effect,  I  send  you 
these  goods,  at  the  prices  mentioned  ;  and  if  you  take  them,  you  know 
what  you  have  to  pay.  The  other  party,  the  vendee,  says,  no,  although 
I  did  not  order  these  particular  goods,  I  will  take  them,  but  I  will  not 
pay  your  prices,  I  will  have  the  goods  subject  to  another  valuation, 
against  your  consent,  and  will  pay  you  in  Greenville,  as  much  as  they  are 
estimated  to  be  worth.  The  one  insists  on  his  own  prices,  perhaps 
according  to  valuation  in  New  York,  and  the  other  on  a  quantum 
valehat,  to  be  determined  at  Greenville,  the  place  of  consignment  In 
an  action  for  goods  sold  and  delivered,  where  no  price  was  agreed  on  by 
the  contracting  parties,  or  where  the  vendor  has  not  put  a  specific  price 
on  them  when  he  sends  them  to  the  vendee,  the  vendor  must  recover,  and 
quantum  valehat  to  be  ascertained  by  evidence  on  the  trial. 

But  when  the  pi'ice  has  been  agreed  on,  or  where  the  vendor  sends 
goods  with  his  prices  marked  upon  them,  and  they  are  accepted  by  the 
vendee,  the  law  will  imply  that  they  were  taken  on  the  vendor's  terras, 
unless  it  should  appear  from  the  course  of  previous  dealing  between  the 
same  parties,  or  from  some  custom  with  which  both  wei'e  acquainted, 
that  the  defendants  had  a  right  to  reduce  the  prices  to  a  quantum  valebat, 
at  the  place  where  they  were  received.  For  in  such  case  the  contract 
might  be  supposed  to  have  been  made  in  reference  to  the  custom  or 
course  of  dealing.  In  the  absence  of  these,  the  general  principles  of  the 
law  must  prevail.  It  seems  to  me,  that  no  one  should  be  obliged  to  part 
with  liis  property  against  *his  consent,  except  on  his  own  terms  ;  r^o-i 
and  if  the  defendants  in  this  case  can  take  these  goods  and  put  '- 
their  own  prices  on  them,  or  by  the  estimate  of  their  own  witnesses,  can 
reduce  the  prices,  the  vendor  might  be  compelled  to  part  with  his  pro- 
perty at  prices  lower  than  he  was  willing  to  take,  and  below  their  true 
valuation.  It  is  enough  to  say  that  the  vendor  could  not  compel  the 
vendees  to  take  the  goods  against  their  consent,  upon  his  own  terms, 
and  it  is  reasonable  that  he  should  not  be  deprived  of  them  against  his 
consent,  upon  the  terms  of  the  defendants.  The  case  stands  thus  be- 
tween the  parties  :  The  defendants  sent  to  Purdyfor  certain  goods  of  a 
particular  description,  he  sends  others  not  ordered  or  contracted  for, 
and  at  higher  prices  than  were  implied  in  the  contract,  and  the  defend- 
ants receive  and  appropriate  them.  Now,  what  should  be  law  on  the 
subject  ?  I  have  examined  the  cases  referred  to  by  Mr.  Starkie,  in  his 
2d  vol.  on  Ev.  p.  640,  and  I  think  he  has  extracted  and  laid  down  the 
principle  correctly.  "  Where  there  has  been  a  special  contract  as  to  the 
nature,  quality  and  price  of  goods,  and  those  which  have  been  delivered  do 
not  correspond  with  the  contract,  it  is  clear  the  vendee  has  a  right  to 
repudiate  goods  so  delivered  in  toto  ;  for  having  contracted  for  one  thing 
the  vendor  cannot  substitute  a  contract  for  some  thing  else  ;  and  therefore, 
if  he  return  the  goods,  or  give  notice  to  the  vendor  to  take  them  back,  it 
Vol.  I.— 13 


178  COLUMBIA,    MAT,    1841.       VOL.  I.  [*271 

is  clear  the  vendor  cannot  recover,"  &c.  If,  however,  the  vendee  in  such 
cases  choose  to  keep  the  goods,  he  cannot  reduce  the  special  contract  to 
a  mere  quantum  valebat,  &c.,  he  must  pay  the  price  or  return  the  goods. 
The  question  of  amendment  was  within  the  discretion  of  the  Judge 
below. 

In  this  view  of  the  law,  we  think  a  new  trial  should  be  granted  in  this 
case,  which  is  accordingly  ordered. 

O'Neall  and  EvAis^s,  JJ.,  concurred. 


*2Y2]  *Baker,  Johnson  &  Co.  vs.  Abner  Bushnell.(g) 

Where  an  applicant  for  the  insolvent  debtors'  Act  has  been  discharged  by  order 
of  the  Circuit  Court,  and  the  order  for  his  discharge  has  been  set  aside  by  the 
Appeal  Court,  the  rights  that  he  acquired  by  the  order,  ceased  and  determined 
when  it  was  reversed  by  the  Appeal  Court. 

A  defendant  who  is  a  party  to  an  appeal,  is  bound  to  take  notice  of  the  result  of 
the  appeal  ;  and  where  a  defendant,  pending  an  appeal,  has  left  the  "prison 
rules,"  so  soon  as  the  api^eal  is  decided  against  him,  he  should  return  within 
the  rules  ;  otherwise  his  bond  is  forfeited. 

Before  Evans,  J.,  at  Edgefield,  Spring  Term,  1841. 

This  was  an  application  for  discharge,  nnder  the  insolvent  debtors' 
Act  of  1758.  It  appears  that  the  application  was  made  at  the  preceding 
term,  and  the  plaintitf  had  filed  a  suggestion,  alleging  certain  objections 
to  the  discharge.  The  presiding  judge  had  ordered  the  discharge,  and 
the  schedule  was  accordingly  assigned,  and  the  oath  administered.  For 
some  cause,  this  order  was  reversed  by  the  Appeal  Court, (6)  but  in  the 
mean  time,  the  defendant,  who  had  given  security  to  remain  within  the 
l)rison  rules,  had  gone  without  them,  and  did  not  return  again  until 
within  a  few  days  before  this  application  was  made  at  this  term.  It  did 
not  appear  that  any  notice  had  been  given  him  of  a  reversal  of  the 
former  order  made  for  his  discharge. 

On  the  first  or  second  day  of  the  terra,  an  application  was  made  to  me, 
for  leave  to  amend  the  suggestion,  by  adding  new  objections  to  his  dis- 
charge. This  I  refused,  as  likely  to  operate  a  delay  prejudicial  to  the 
defendant.  During  the  term,  the  issues  on  the  suggestion  were  tried  by 
the  jury,  and  all  of  them  found  for  the  defendant,  when  his  discharge  was 
moved  for.  The  plaintiffs  objected,  that  since  the  last  Court  the  defend- 
ant had  gone  without  the  prison  rules ;  the  objection  was  overruled,  and 
the  prisoner  discharged. 

GROUNDS    OF    APPEAL. 

Because  the  defendant,  Buslinell,  having  gone  without  the  prison  rules, 
sinoc  the  sii-r<,rcstinn  was  filed,  iind  since  tlicj  October  term  of  the  Court,  this 
objection  to  liis  di.scharge  could  not  have  been  made  Avhen  the  suggestion  was 
filed,  and  could  be  made  only  by  an  amendment  of  the  suggestion;  and  be- 
*2731  *'^""^*^  '"^  Honor  held  that  he  was  entitled  to  his  discharge  notwith- 
■1  standing  such  absence. 

(a)  S.  C.  Sup.  66.     An.  (j)  Sup.  66.     An. 


*273]     BAKER,  JOHNSON  &  CO.  VS.    BUSHNELL.       179 

Burt,  for  motion,  said,  the  Court  had  power  to  permit  an  amendment.  If  so, 
could  the  Court  then  exercise  a  discnstion?     Cited  Act  of  1759  ;  Act  of  1788.  (a) 

Wiis  the  defendant,  by  his  being  without  the  prison  rules,  prevented  from  his 
discharge,  and  did  he  come  within  the  contemplation  of  the  Act  of  1788.  6th 
Statutes  at  Large,  401.     Brings  vs.   Walker,  1  Hill,  118;  3d  Chitty's  Gen.  Prac. 

55;?. 

Pending  an  apj^eal,  shall  the  defendant  remain  within  the  rules  ? 

Pending  an  appeal,  the  proceedings  are  not  complete  on  the  circuit,  and  it  is 
the  Appeal  Court  that  confirms  or  vacates  the  proceedings  of  the  Circuit  Court. 
Hence  the  prisoner  is  compelled  by  law  to  remain  within  the  prison  rules. 

If  the  prisoner  was  bound  to  return  within  the  prison  rules,  after  the  refusal  of 
his  discharge  by  the  Appeal  Court,  should  he  have  notice  of  such  refusal? 

Was  it  necessary  that  notice  of  the  appeal  should  be  given  before  the  order  for 
the  defendant's  discharge  was  made  ? 

The  defendant  was  bound  to  remain  within  the  rules  until  the  time  of  appeal 
had  elapsed. 

Carroll,  contra,  cited  2  Bay's  Rep.  ;  3  Chitty's  Gen.  P.  563. 

Wardlaiv,  contra.     Does  the  law  require  that  any  one  applying  for  his  discharge, 
be  imprisoned,  to  entitle  him  to  his  discharge?     2  Brev.  Dig.  1,55  ;  Id.  IGO. 
There  is  no  necessity  by  law  for  the  defendant  to  be  imprisoned  at  all. 

Curia,  joer  Evans,  J.  The  fact  was  clearly  established,  that  imme- 
diately after  the  order  was  made  for  his  discharge,  at  Fall  Term,  1840, 
the  defendant  went  beyond  the  prison  bounds,  and  remained  without 
them,  until  at  or  about  the  beginning  of  the  next  term. 

And  the  only  question  which  I  propose  to  discuss  is,  whether  by  this 
act  he  forfeited  his  right  to  be  discharged,  under  the  insolvent  Act  of 
1759.  By  the  Act  of  1788,  sec.  7,  it  is  enacted*  "that  no 
prisoner  shall  be  discharged,  if  he  or  she  has  been  seen  without 
the  prison  rules,  without  being  legally  authorized  to  do  so."  The  de- 
fendant did  go  and  remain  without,  and  unless  he  has  shown  that  he  had 
legal  authority  to  do  so,  this  question  must  be  decided  against  him.  The 
general  rule  is,  that  any  order  or  judgment  of  a  Court,  having  jurisdic- 
tion of  the  subject  matter,  is  binding  and  conclusive,  until  reversed ;  and. 
I  think  the  defendant  was  not  bound  to  go  back  to  prison,  there  to  wait 
until  the  plaintiff  had  decided  whether  he  would  appeal.  The  order 
conferred  on  him  the  privilege  to  go  at  large,  and  this  privilege  he  might 
lawfully  exercise  so  long  as  the  order  was  a  subsisting  one  ;  during  that 
time  it  was  a  shield  and  protection  to  him.  But  when  the  order  was 
reversed,  as  to  future  events,  it  was  as  if  it  had  never  existed,  and  all  the 
rights  acquired  under  it,  from  that  time,  ceased  and  determined. 

The  defendant  being  a  i)arty  to  the  appeal,  was  bound  to  take  notice 
of  the  result  of  it.  AVhen  the  order  was  revoked,  he  no  longer  had  any 
legal  authority  to  be  without  the  jail  bounds.  He  should  have  returned, 
but  he  did  not ;  and  it  is  the  opinion  of  this  Court,  that  he  thereby  for- 
feited his  right  to  be  discharged  under  the  insolvent  law.  The  motion 
to  reverse  the  decision  of  the  Circuit  Court  is  therefore  granted. 

Richardson,  O'Neall  and  Butler,  JJ.,  concurred. 

See  5  Rich.  294 ;  Dud.  370,     An. 

(a)  4  Stat.  56 ;  5  Stat,  78,     An. 


[*274 


180  COLUMBIA,    MAT,    1841.      VOL.  I.  [*275 


*275]         *Daniel  Caldwell,  ct  al.  ads.  James  Langford. 

To  correct  a  slave  with,  a  whip,  giring  him  but  fifteen  stripes,  when  he  is  found 
without  his  master's  enclosure,  with  a  ticket  or  permit,  accounting  for  his 
absence,  is  held  to  be  a  beating  and  abusing,  within  the  meaning  of  the  Act  of 
1839. 

In  bringing  an  action  in  the  sum.  pro.  jurisdiction,  to  recover  the  penalty  of  $50, 
under  the  Act  of  1839,  (a)  for  the  unlawful  beating  of  a  slave,  it  is  not  neces- 
sary that  the  plaintiff  should  aver  in  his  process  that  the  defendant  was  a  white 
man. 

Strictness  of  pleading  is  not  required  in  the  summary  process  jurisdiction. 

Before  Evans,  J.,  at  Newberry,  Spring  Term,  1841. 

These  were  suvi.  pro^s.  to  recover  the  penalty  of  fifty  dollars,  under 
an  Act  of  the  Legislature,  subjecting  to  that  penalty,  any  one  who  shall 
beat  and  abuse  any  slave  having  a  ticket. 

The  facts  that  the  defendants  severally  beat  the  plaintiff's  negroes,  with 
tickets,  were  clearly  proven.  The  beating  consisted  in  the  infliction  of 
about  fifteen  stripes  with  a  whip. 

The  negroes  were  at  a  store,  on  Sunday,  behaving  themselves  peace- 
ably and  orderly ;  and  the  flogging  was  without  any  excuse,  and  done  in 
mere  wantonness  of  power. 

One  of  the  grounds  of  appeal  alleges  that  the  tickets  were  not  lawful 
tickets.  I  do  not  remember  the  words  of  the  tickets.  They  were  not  in 
the  very  words  of  the  Act,  but  in  substance  the  same  as  the  words  pre- 
scribed. 

The  defendants  claimed  to  have  their  case  tried  by  a  jury,  who  decided 
for  the  plaintiffs. 

I  refused  a  motion  for  a  nonsuit,  on  the  grounds  set  out  in  the  brief. 

In  my  charge  to  the  jury,  I  told  them  that  the  law  had  not  affixed  to 
the  words  "  beat  and  abuse,"  any  precise  meaning,  and  it  was  for  them 
to  decide  whether  the  facts  as  proved  was  a  beating  and  abusing  within 
the  Act.  In  my  own  opinion,  and  I  think  it  likely  I  so  stated  to  the 
jury,  any  wanton  whipping  of  a  negro,  without  any  pretence  of  excuse  or 
justification,  constituted  the  offence  for  which  the  action  would  lie. 

Defendants  moved  for  a  new  trial,  in  arrest  of  judgment,  and  for  a 
nonsuit. 

*2'~tC)]     *Iii  arrest  ofjud/jment,  upon  the  grounds  : 

1.  That  it  is  not  alleged  in  the  processes,  that  the  defendants  were  white 
men. 

2.  That  it  is  not  alleged  in  the  processes,  that  the  negroes  who  were  whipped, 
were  peaceable  and  ((luet. 

For  a  tionsui/,  upon  the  grounds  : 

1.  That  the  infliction  of  fourteen  or  fifteen  lashes,  with  a  switch,  did  not 
constitute  u  healing  or  abusing  of  tlie  slaves,  accortling  to  the  meaning  of  the 
Act  of  the  Jiegisliiture  upon  the  subject. 

2.  That  the  tickets  whicli  the  slaves  had,  were  not  lawful  tickets. 

And  for  a  iifw  trial,  upon  the  ground  : 

That  his  Honor  charged  the  jury  that,  in  liis   opinion,  any  whipping  of  the 
(a)  11  Stat.  58,  §  5. 


*276]  CALDTTEI.L    ET  AL.    ads.    LANGFORD.  181 

slave  of  another,  would  be  siiificieiit  to  entitle  the  owner  to  recover  the  penalty 
of  fifty  dollars,  under  the  Acts  of  Assembly ;  whereas  it  is  respectfully  sub- 
mitted, that  a  moderate  whipping  of  fourteen  or  fifteen  lashes,  such  as  were 
inflicted  by  the  defendants,  does  not  constitute  the  offence  of  beating  or  abusing 
a  slave;  and  that  although  his  Honor  did  intimate  to  the  jury  that  they  might 
come  to  the  conclusion  that  the  defendants  were  not  guilty  of  beating  or 
abusing  the  slaves,  yet  the  distinct  expression  of  his  own  opinion  very  properly 
governed  the  jury  in  making  up  their  verdict. 

Pope  aud  Pope,  for  the  motion,  cited  Acts  1839,  58  and  5!),  5  sect. 

This  action  is  brought  for  a  penalty,  and  not  for  liquidated  damages. 

Under  the  ground  in  arrest  of  judgment,  it  was  contended  by  Mr.  P.  that  the  de- 
fendants sliould  be  described  in  the  process  as  white  men  ;  and  the  negroes  should 
be  alleged  to  be  peaceable.  Cited  Rice's  Dig.  15:  2  Brev.  Rep.  386,  The  State 
vs.  Clarice, 

Fair,  contra,  cited  8  Stat,  at  Large,  538,  and  said  the  status  of  color  was  a 
question  for  the  Court. 

Curia,  per  O'Neall,  J.  I  agree  fully  with  the  Jiid<^e  below,  that 
any  UMlawful  wliippinjr  of  a  slave,  is  a  heating  and  abasing  *withiii  r:^^^^ 
the  words  of  the  Act  of  1839,  sec.  5,(a)  (A.  A.,  1839,  58,)  which  L  "' ' 
enacts,  "  that  it  shall  be  the  duty  of  the  commander  of  every  patrol,  at 
least  as  often  as  once  a  fortnight,  to  call  out  the  patrol  under  his  com- 
mand, and  to  take  up  all  slaves  who  may  be  found  without  the  limits  of 
their  owner's  plantation,  under  suspicious  circumstances,  or  at  a  suspicious 
distance  therefrom,  and  to  correct  all  such  slaves  by  a  moderate  whipping 
with  a  switch  or  cowskin,  not  exceeding  twenty  lashes,  unless  the  said 
slave  have  a  ticket  or  letter  to  show  tlie  reasonableness  of  his  or  her 
absence,  or  shall  have  some  white  person  in  company  to  give  an  account 
of  the  business  of  such  slave  or  slaves ;  and  if  any  white  man  shall  beat 
or  abuse  any  slave  quietly  and  peaceably  being  in  his  master's  plantation, 
or  found  any  where  without  the  same,  with  a  lawful  ticket,  he  shall  forfeit 
the  sum  of  fifty  dollars." 

The  first  question  made  by  the  defendants  is,  whether  in  the  processes, 
it  was  necessary  to  aver  that  the  defendant,  being  a  wliite  man,  did,  &c. 
This  point  was  decided  in  the  exactly  analogous  case,  The  State  vs. 
Schroder,  (3  Hill,  GO.)  In  that  case,  the  defendant  was  indicted  for 
selling  spirituous  liquors  to  a  slave,  under  the  Act  of  '34,  which  provides, 
"if  any  free  white  person,  being  a  distiller,  vendor,  or  retailer  of  spirit- 
uous liquors,"  &c.  In  that  case,  it  was  held  that  it  was  unnecessary  to 
charge  that  the  defendant  was  a  "free  white  person."  It  was  said 
there,  as  it  may  be  here,  of  the  words  used  in  the  Act,  "they  are  merely 
descriptive  of  the  person  by  whom  the  offence  may  be  committed ;  and 
unless  there  is  some  uncertainty  without  the  words,  whether  the  defend- 
ant be  liable  to  receive  judgment  on  conviction,  there  can  be  no  necessity 
to  use  them.'  The  general  inference  is,  that  a  party  in  Court  is  white, 
until  the  contrary  appear  ;  and  until  a  defendant  claims  the  unenviable 
distinction  of  being  regarded  as  colored,  he  will  be  regarded  as  occupying 
the  position  of  a  free  white  man. 

The  second  ground  objects  that  it  is  not  alleged  in  the  process,  that 
the  slave  was  found  "peaceably  and  quietly  without  his  master's  planta- 
tion."    These  words,  according  to  my  construction,  apply  exclusively  to 

(o)  11  Stat.  58,  I  5.     An. 


182  COLUMBIA,    MAY,    1841.      VOL.  I.  [*27T 

the  case  of  a  slave  found  on  his  master's  plantation,  and  it  may  be,  in 
that  case,  it  is  necessary  that  they  should  be  used.  But  in  the  process 
♦g-T-.!  jurisdiction,  *strictness  of  pleading  is  not  required.  If  the  party 
■^  in  a  short  way  state  his  claim  to  demand  money,  as  a  debt,  or 
as  a  compensation  for  an  injury,  and  enough  appears  to  apprise  the 
party  of  the  matter  to  which  he  is  called  to  answer,  it  is  generally  suffi- 
cient. Technical  precision  is  not  demanded,  Hilhurn  vs.  Pnyi^inger, 
(1  Bail.  97.)  I  should,  therefore,  be  inclined  to  think,  that  in  a  process 
of  this  character,  a  description  of  the  injury  sufficiently  definite  to 
apprise  the  party  of  the  matter  of  which  the  plaintiff  complains,  would 
be  sufficient.  The  processes  here  are  sufficient,  according  to  the  strictest 
rule  of  defining  an  offence  in  the  words  of  the  statute,  if  it  were  not 
necessary  to  aver  that  the  slave  was  found  "  peaceably  and  quietly," 
without,  &c.  The  portion  of  the  clause  under  which  this  action  is 
brought,  should  read  thus  :  "  If  any  white  man  shall  beat  or  abuse  any 
slave  found  without  his  master's  plantation,  with  a  lawful  ticket,  he  shall 
forfeit  the  sum  of  fifty  dollars."  That  this  is  the  true  reading  is,  I  think 
manifest,  from  reading  the  two  parts  of  the  sentence  together.  What  is 
it  which  agrees  with  the  participle,  being,  in  the  preceding  section  ?  It 
is  the  word  slave,  and  the  conjunction  unites  the  sentence,  so  that  the 
word  slave  agrees  in  the  succeeding  section  of  the  same  sentence,  with 
the  participle  found  ;  but  the  adverbs,  quietly  and  peaceably,  qualify  the 
word  being,  and  might  have  the  same  effect  on  the  word  "found,"  if  a 
new  qualification  with  a  lawful  ticket  was  not  added.  But  without  pur- 
suing this  philological  examination  of  the  sentence,  it  will  be  only 
necessary  to  read  the  previous  parts  of  the  section  of  the  Act,  to  see 
that  the  Act  c|oes  not  authorize  even  a  patrol  to  whip  a  slave  found  out 
of  his  master's  plantation,  if  he  shall  have  a  ticket  or  letter  showing  the 
reasonaljleuess  of  his  absence.  Reading  the  two  parts  together,  I  think 
it  is  })iain  that  the  penalty  was  intended  to  be  incurred,  if  a  slave  was 
whipped  contrary  to  the  provisions  authorizing  it.  Turn  to  the  13th 
sec.  Act  of  1839,  p.  60,  and  the  same  authority  is  repeated.  I  am  free 
to  admit  that  if  the  slave  had  not  in  fact  demeaned  himself  "  quietly  and 
peaceably,"  the  defendants  might  have  justified  their  conduct,  and  would 
have  been  protected,  under  the  general  authority  which  devolves  on  all 
wlnte  men,  of  correcting  slaves  who  may  so  offend. 

If,  however,  the  words  "quietly  and  peaceably,"  do  qualify  the  word 
^.^wq-i  found,  and  are  to  be  read  as  part  of  the  sentence  *under  which 
^  these  jirocesses  are  brought,  still  I  do  not  think  it  was  necessary 
to  aver  that  the  slave  was  found  quietly  and  peaceably  without,  &c.  For 
in  that  case,  it  would  be  matter  of  excuse  to  the  defendants,  and  as  such 
need  not  lie  noticed.  In  1  Chitty's  Crim.  Law,  283,  it  is  said,  that  in  an 
indict n)ent  for  not  going  to  church,  it  is  not  necessary  to  aver  that  the 
defendant  had  no  reasonable  excuse  for  his  absence,  on  account  of  the 
words  of  the  Act,  "hnving  no  reasonable  excuse  to  be  absent,"  for  as 
the  necessity  for  proving  the  excuse  lies  upon  the  defendant,  the  con- 
trary need  not  l^e  averred  by  the  prosecutor.  That  this  is  the  rule 
np]»licable  to  these  cases  is,  I  think  manifest,  when  we  recur  to  the  Act, 
and  find  that  tliis  ])enalty  is  given  in  addition  to  the  defendant's  liability 
for  tlie  trespass  for  beating  a  slave.  If  a  slave  is  beat,  it  is  a  trespass, 
until  it  is  justified  or  excused  by  the  party  beating.     It  is  only  necessary 


*279]  RICHARDSON   VS.    RICHARDSON".  183 

to  state  the  fact  to  create  the  legal  implication  of  trespass,  and  all  mat- 
ters of  excuse  or  justification  must  come  from  the  defendant.  The  object 
of  the  Act  was  to  punish  by  a  penalty  a  trespass  committed  on  a  slave, 
with  his  master's  ticket  in  his  hand,  unless  the  defendant  could  justify  or 
excuse  his  act,  by  showing  that  the  slave  so  misbehaved  himself  as  to 
authorize  any  white  man  to  correct  him. 

The  other  grounds  were  not  pressed  in  argument,  and  need  not  be 
noticed. 

The  motion  is  dismissed. 

Gantt,  Evans  and  Butler,  JJ.,  concurred. 

See  Hadden  vs.  Liebeschultz,  11  Rich.  505 ;  Smith  vs.  Ilamilton,  10  Rich.  48.     An. 


*J.  J.  Richardson  vs.  T.  C.  Richardson.  [*280 

The  parol  undertaking  of  a  third  person  to  pay  for  articles  purchased  by  another, 
is  void,  by  the  Statute  of  Frauds. 

Before  Earle,  J.,  at  Sumter,  Spring  Term,  1841. 

This  was  a  sum.  pro.  on  a  merchant's  account.  The  goods  were 
charged  on  the  books  to  one  Simmons,  who  was  the  overseer  of  the  de- 
fendant. It  was  attempted  to  make  the  defendant  liable  on  the  evidence 
of  Jones,  who  was  the  clerk  of  the  plaintiff,  examined  by  commission, 
who  deposed  that  he  was  under  a  strong  impression  that  the  goods  were 
charged  to  Simmons  at  the  request  and  direction  of  the  defendant. 
That  Simmons  was  not  held  responsible, -and  in  fact  had  never  been 
called  on  to  pay.  That  the  defendant,  when  called  on,  referred  witness 
to  Simmons,  saying,  if  it  was  correct,  he  defendant,  would  pay  it;  and 
Simmons  said  it  was  correct,  deducting  a  single  charge  of  four  dollars  ; 
and,  in  fact  the  plaintiff  always  looked  to  the  defendant. 

The  question  arose  on  a  motion  for  nonsuit,  whether  the  defendant  was 
liable.  I  thought  the  books  established  a  debt  against  Simmons,  and 
that  the  credit  was  originally  given  to  him.  The  strong  impression  of 
the  witness  was  not  enough,  in  my  judgment,  to  obviate  the  effect  of  this. 
The  parol  undertaking  of  the  defendant,  was  collateral  and  void.  The 
nonsuit  was  ordered. 

The  plaintiff  moves  to  set  aside  the  nonsuit. 

1.  Because  the  undertaking  on  the  part  of  the  defendant  to  be  responsible 
for  articles  purchased  by  Simmons,  was  .original  in  its  nature,  and  not  within 
the  statute  of  frauds. 

2.  Because  the  credit  was  wholly  given  to  the  defendant,  the  account  having 
been  only  charged  to  Simmons,  at  the  special  instance  and  request  of  the 
defendant,  for  his  convenience,  and  credit  was  expressly  refused  to  Simmons 
himself. 

W.  F.  De  Saussure,  for  the  motion.  Tlie  question  in  this  case  is,  to  wliom  was 
the  credit  given  ?  Looking  to  the  testimony,  we  must  conclude  that  it  was  given 
to  the  defendant.     McKenzie  vs.  Quilter,  (4  McC.  409.) 

*Moses,  contra.  If  a  third  person  is  liable,  it  must  be  in  writing.  1  r*9gi 
Saunders,  211,  note  A.     Lelland  ys.  Grain,  (1  McC.  100.)  ■■ 


184  COLUJIBIA,    MAY,    184-1.      VOL.  I.  [*281 

Curia,  per  Gantt,  J.  This  was  a  summary  process  on  a  merchant's 
account.  On  the  books  it  appeared  that  the  goods  were  charged  to  one 
Simmons,  the  overseer  of  the  defendant.  It  was  attempted  to  be  shown 
on  the  trial,  that  although  the  goods  were  charged  to  Simmons,  yet  that 
the  defendant,  Thomas  C.  Richardson,  was  the  original  contracting 
part}',  and,  as  such,  bound  in  law  to  pay  for  them.  The  evidence  offered 
to  show  this,  was  the  examination  of  the  clerk  of  the  plaintiff,  who  de- 
posed that  he  was  under  a  strong  impression  that  the  goods  were  charged 
to  Simmons  at  the  request  and  direction  of  the  defendant. 

But  the  process  which  issued  in  this  case,  is  conclusive  to  show  that 
Simmons,  and  not  the  defendant,  was  the  original  contracting  party  ;  for 
it  alleges  that  the  defendant  is  indebted  to  the  plaintiff  in  the  sum  of 
twenty-seven  dollars  and  seventy-one  cents,  which  he  assumed  to  pay  on 
an  account  for  that  sura,  which  the  plaintiff  had  against  one  Thomas 
Simmons.  How,  then,  can  it  be  maintained,  that  the  undertaking  was 
original  on  the  part  of  the  defendant  ?  If  the  defendant  ever  did  pro- 
mise to  pay  this  account  for  Simmons,  the  promise  should  have  been  in 
writing  ;  otherwise,  it  cannot  be  enforced,  being  void  by  the  statute  of 
frauds. 

The  motion  is  refused. 

The  whole  Court  concurred. 

See  2  McM.  372,  and  note  there.     An. 


*282]  Charles  Fowler  l-^-.   Samuel  Fleming. 

Where  there  is  a  special  endorsement  on  a  note,  waiving  the  right  to  the  usual 
notice  of  demand  and  refusal ;  unless  the  endorsement  is  written  by  the  en- 
dorser, its  truth  and  correctness  must  be  clearly  proved  to  have  come  from  his 
authority,  or  it  cannot  avail  the' endorsee. 

Before  Gantt,  J.,  at  Laurens,  Spring  Term,  1841. 

This  was  an  action  of  assumpsit  on  two  notes  of  hand  ;  one  for  seven 
hundred  and  fifteen  dollars,  on  which  there  was  no  defence  set  up,  the 
other  for  four  hundred  dollars,  drawn  by  Thomas  B.  Lockhart,  in  favor 
of  Samuel  Fleming,  the  defendant,  and  endorsed  by  him  in  blank  before 
due.  The  Ijlank  was  filled  up  by  Fowler,  so  as  to  dispense  with  the  other- 
wise legal  necessity  of  making  a  demand  on  the  drawer,  and  giving  no- 
tice to  the  endorser,  of  non-payment.  The  verdict  of  the  jury  was  in 
favor  of  the  plaintiff,  to  the  amount  of  both  notes,  and  the  defendant 
appeals,  on  the  following  grounds  : 

1.  Because  tiio  parol  testimony  was  incompetent  to  alter  or  explain  the 
endorsement  in  blank. 

2.  Because  the  proof  made  in  said  case  was  iusuflicieut  in  law  to  sustain  the 
acticJn. 

The  evidence  offered  in  this  case,  was  the  examination  of  M.  B.  Park, 
the  purport  of  which  was,  that  he  heard  Fleming  say  tliat  he  authorized 
Fowler  to  fill  out  the  endorsement ;  that  he,  (Fleming,)  did  not  know 


^282] 


FOWLER   VS.    FLEMING.  185 


that  the  law  required  demand  and  notice  ;  but  that  when  he  endorsed  tlie 
note,  he  considered  himself  as  much  bound  for  its  payment,  as  if  he  had 
been  security. 

The  next  evidence  that  was  oifered,  was  that  of  Robert  H.  Park,  who 
testified  that  he  heard  Pleminj?  say,  that  wlien  he  put  his  name  on  the 
back  of  the  note  he  allowed  Fowler  to  fill  up  the  endorsement  as  he 
wished.  Other  testimony  was  offered,  but  it  is  omitted,  as  having  no 
direct  bearing  on  the  isolated  question  of  the  law  by  which  this  case 
must  be  determined. 

As  respects  the  note  of  Lockhart,  endorsed  by  Fleming  to  the  plaintiff, 
I  saw  nothing  so  conclusive  in  the  testimony  as  *to  justify  the  rjic^oo 
jury  in  concluding  that  there  had  been  any  waiver  on  the  part  of  ^  " 
Fleming  of  the  legal  necessity  of  making  a  demand  on  the  drawer,  by  the 
endorsee,  and  in  the  event  of  non-payment,  of  giving  notice  of  the  same 
to  the  endorser. 

Whether  Fowler  was  authorized  to  fill  up  the  blank  so  as  to  dispense 
with  the  necessity  on  his  part  of  making  a  demand  of  the  drawer  when 
the  note  became  due,  and  on  failure  of  papuent,  of  giving  notice  to  the 
endorser  thereof,  was  a  question  to  be  settled  by  the  evidence.  I  saw 
nothng  in  the  testimony  to  justify  such  a  deduction,  and  in  the  charge 
made  to  the  jury  insinuated  as  much  ;  but  the  jury  thought  otherwise,  as 
would  appear  by  their  verdict,  finding  for  the  plaintiff  the  amount  of  the 
ondorsed  note. 

Sullivan,  for  the  motion,  cited,  on  the  first  ground,  3  Kent's  Com.  88  ;  1  Moore, 
535,  or  1  Harr.  Dig.  504,  Campbell  \s.  Ilogson ;  1  Harr.  Dig.  519,  or  Gow.  79;  3 
Campbell,  57 ;  1  Starkie  Rep.  361 ;  10  Barn.  &  Cress.  729  ;  5  John.  375  ;  Chitty 
on  Bills,  192 ;  2  Mills'  Const.  Rep.  31,  Price,  Ex' or,  vs.  Perry;  29  Charles ;  Genett 
Mercantile  Law,  176-7. 

Young,  contra,  insisted  that  the  plaintiff  could  not  recover  on  the  endorsement. 
That  he  could  upon  the  general  counts  in  the  declaration  for  money  borrowed. 
Cited  Beckivithvs.  Angel,  6  Comiect.  Rep.  345;  Ulenvs.  Kitliredge;  7  Mass.  Rep. 
233  ;  Joslin  vs.  Ames,  3  do.  235  ;  13  Johns.  178  ;  17  do.  329  ;  14  do.  349  ;  Framp- 
ton  vs.  Dudley,  1  Nott  &  McCord,  128.  A  party  may  prove  by  parol  any  agree- 
ment that  was  entered  into  at  the  time  of  the  endorsement.  Also,  what  power 
was  delegated.    The  verdict  should  stand  u^Don  the  general  count  in  the  declaration. 

Sullivan,  in  reply,  said  the  case  from  1  N.  &  McC.  128,  relied  on  by  plaintifi's 
counsel,  did  not  support  the  position  of  plaintiff. 

Curia,  per  Richardson,  J.  The  Court  concurs  with  the  presiding 
Judge  in  the  principles  of  his  charge  to  the  jury.  The  endorser  of  a 
promissory  note  undertakes  to  pay  the  amount,  if  the  maker  shall  not 
have  paid  it,  after  demand  made  on  the  day  fixed  for  payment,  or  by  the 
last  day  of  *grace,  and  provided  due  notice  of  his  failure  so  to  r:(.9qi 
pay  be  given  to  the  endorser.  (N.  &.  McCord,  83 ;  2  N.  &  McC.  •- 
283.)  But  it  is  clear  that  the  endorser  may  waive  his  right  to  such  timely 
demand  and  notice  ;  but  when  such  a  waiver  of  the  endorser's  legal  rights 
is  alleged,  it  should  be  plainly  proved  ;  and,  assuredly,  any  endorser  may 
expressly  endorse  his  consent  to  waive  such  rights,  and  dispense  witli 
further  proof.  As  to  the  competency  of  any  other  person  to  fill  up  such 
special  endorsement,  by  the  authority  of  the  endorsor,  I  can  perceive  no 
reason  to  question  it,  (3  Kent,  90;  6  Con.  Rep.  340 ;  4  Pick.  386  ;  13 


186  COLUMBIA,   MAY,    1841.      VOL.  I.  [*284 

John.  179;  17  Johns.  329.)  And  I  know  of  no  principle  of  law  to 
prevent  such  authority  being  by  parol  or  verbal  direction.  Blank 
endorsements  are  in  general  filled  up  by  the  endorsees,  and  such  special 
endorsement  is  no  more  than  an  express  waiving  of  the  right  to  require 
due  demand,  and  the  notice  of  a  failure  to  pay  the  note,  which  are  facts 
usually  proved  viva  voce.  But  whatever  be  the  special  endorsement, 
unless  wi-itten  by  the  endorser,  its  truth  and  correctness  must  be  proved 
to  have  come  from  his  authority,  or  it  cannot  avail  the  endorsee.  It 
would  be  still  a  question  upon  the  actual  agreement  or  undertaking  of 
the  endorser,  to  be  made  out  by  evidence  "aliunde.''^ 

To  make  out  such  an  undertaking  was  in  fact  the  very  object  in  the 
case  before  the  Court,  in  order  to  hold  the  endorser  liable  upon  the 
alleged  special  endorsement  supposed  to  have  been  authorized  by 
Fleming. 

The  true  question  of  the  case,  therefore,  turns  upon  the  inquiry  :  did 
Fleming  authorize  the  special  endorsement  found  upon  Lockhart's 
note  ?  The  allegation  that  Fleming  authorized  such  an  endorsement, 
varying  from,  if  not  contradicting  the  usual  purport  of  endorsements, 
and  rendering  him  liable,  when  he  would  not  have  been  liable,  upon  the 
usual  blank  endorsement,  ought  to  be  clearly  made  out.  But  the  Court 
can  perceive,  in  the  evidence  offered,  no  sufficient  proof  of  any  agreement 
to  deprive  Fleming  of  the  established  rights  of  an  endorser.  He  may 
have  well  authorized  the  endorsee  to  fill  out  the  endorsement,  or  con- 
sidered himself  as  the  security  for  the  note,  without  agreeing  to  renounce 
the  rights  of  an  endorser  who  is  a  provisional  security,  (See  3IiUer  &  Co. 
vs.  Thompson,  MS.  cited  1  Rice's  Dig.  129.) 

*98^1  *-t^iiy  one  may  renounce  his  legal  rights.  But  it  should  ap- 
^  pear  that  he  understood  what  he  released,  or  else  did  so  expressly. 
(1  Bailey,  45o. )  As,  for  instance,  where  the  endorser  promises  payment, 
knowing  there  has  been  no  demand  upon  the  maker,  and  that  he  might 
have  objected  on  that  account.  Aiwood  vs.  Hat^eldon,  (2  Bailey,  457.) 
Ililler  &  Go.  vs.  Thompson,  (1  Rice's  Dig.  129.) 

In  such  a  case,  the  subject  of  the  release  is  of  a  legal  advantage  ; 
which  may  be  done.  But,  in  the  case  before  the  Court,  there  is  scarcely 
any  proof  of  such  an  intention.  The  evidence  would  rather  go  to  ex- 
cuse the  endorsee  for  so  filling  up  the  endorsement,  than  to  prove  that 
he  had  express  authority  for  doing  it ;  and  no  support  can  be  derived 
from  his  own  act,  or  manner  of  endorsing  the  note.  For,  as  against 
Fleming,  we  are  to  look  not  so  much  to  the  endorsement  itself,  as  for 
the  proof  (jf  his  authority  to  Fowler  to  make  such  special  endorsement; 
and  if  we  suppose  tlie  endorsement  again  in  blank,  we  readily  perceive 
how  fecljle  is  the  evidence  that  Fleming  ever  intended  to  renounce  his 
right  to  require  a  demand  and  notice  of  refusal  to  pay  the  note.  There 
must,  therefore,  be  a  new  trial,  unless  the  plaintiff  shall  release  the  ver- 
dict to  the  extent  of  the  note  of  $400  and  interest. 

The  whole  Court  concurred. 

See  Sup.  70 ;  3  Rich.  133  ;  4  Strob.  10.     An. 


#i 


286]  CLARKE    ET  AL.    VS.    SIMPSON.  187 


*Clarke,  McTier  &  Co.  vs.  James  Simpson.  [*286 

A  plaintiff,  after  the  defendant  has  been  arrested  by  virtue  of  an  order  for  bail, 
has  the  right  to  discharge  the  bail  from  any  liability  ;  and  also  to  discharge  the 
defendant,  without  his  consent,  although  he  may  have  given  bond  for  the  prison 
rules,  and  filed  his  schedule,  with  the  view  of  taking  the  insolvent  debtors'  Act. 

A  prisoner  confined  under  an  order  for  bail,  and  who  has  filed  his  schedule  with 
the  clerk,  and  given  notice  to  his  creditors  of  his  intention  to  take  the  insolvent 
debtors'  Act,  cannot  take  this  Act  where  he  has  been  discharged  by  the  plaiutiflF 
at  whose  suit  he  has  been  arrested. 

It  is  questionable  whether  a  defendant  can  be  arrested  pending  a  suit,  where  he 
has  been  previously  arrested  and  held  to  bail,  and  by  the  plaintiff  discharged. 

Before  Gantt,  J.,  at  Abbeville,  Fall    Terra,  1840. 

This  was  an  application  for  a  discharge  under  the  insolvent  debtors' 
Act. 

The  defendant  was  arrested  on  the  22d  February,  1840,  by  the  sheriff, 
by  virtue  of  an  order  for  bail,  and  on  the  same  day  gave  bail.  On  the 
24th  February,  1840,  he  was  surrendered  by  his  bail,  and  gave  other 
bail.  He  was  agaiu  surrendered  by  his  last  bail,  to  the  sheriff,  on  the 
20tl»  day  of  March,  1840,  and  gave  bond  and  security  for  the  prison 
bounds.  On  the  22d  April,  1840,  he  filed  his  schedule  in  the  clerk's 
office,  and  on  the  same  day  gave  notice  to  his  creditors  of  his  intention 
to  apply  to  the  Court  at  this  sitting  for  his  discharge  under  the  "  insolvent 
debtors'  Act,"  upon  his  executing  the  assignment  required  by  the  Acts 
aforesaid.  On  the  second  bail  bond  was  endorsed  the  following  dis- 
charge : 

''  South  Carolina — Abbeville  District.  We  do  hereby  discharge  the 
bail  from  all  liability  on  account  of  this  case. 

"  Wardlaw  &  Perin, 
"Attorneys  for  Clarke,  McTier  &  Co." 

Another  paper,  executed  in  like  manner  as  above,  directed  to  the 
sheriff,  authorizing  him  to  discharge  the  defendant  from  confinement  with- 
out liability  to  the  sheriff.  This  paper  was  not  produced  to  the  Court, 
but  it  was  not  questioned  that  such  a  paper  was  executed.  The  dis- 
charge by  this  Court  of  the  defendant  was  resisted,  on  the  ground  that 
he  was  not  now  in  the  custody  of  the  law  ;  that  the  plaintiffs  had  already 
discharged  the  defendant,  and  that  the  defendant  was  not  now  entitled  to 
the  benefits  of  the  discharge  under  the  insolvent  Act. 

*The  Court  was  of  opinion  that  the  plaintiffs  could  not  dis-  r^c)o>, 
charge  the  defendant  without  his  consent ;  and  he  having  refused  •- 
to  go  when  the  plaintiffs  desired,  that  he  was  still  in  the  custody  of  the 
sheriff;  and  that  he  was  entitled  to  his  discharge,  with  all  the  benefits  of 
the  Act ;  and  so  ordered. 

The  plaintiffs,  Clarke,  McTier  &  Co.,  move  to  vacate  the  order  of  dis- 
charge, because  the  defendant,  under  the  circumstances,  was  not  entitled 
to  the  benefit  of  the  insolvent  debtors'  Act. 

Wardlaw  and  Perrin,  for  the  motion.  The  question  is,  whether  a  plaintiff  can 
discharge  a  defendant,  after  an  order  for  bail  ? 

The  whole  object  of  bail  is,  that  the  plaintiff  may  have  some  security  for  his 
debt. 


188  COLUMBIA,    MAY,    1841.      VOL.  I.  [*287 

An  arrest  under  a  bail  writ  is   different  from  arrest  under  ca.    sa.     Mr.  W. 
referred  to  the  oath  of  the  insolvent  debtor. 

Burt,  contra,  cited  Act  1815, (a)  and  said  that  it  applied  only  to  final  process. 
The  defendant  can  only  be  discharged  by  his  own  consent. 
Defendants  would  be  often  liable  to  be  harassed  and  put  in  jail  on  the  same 
case,  if  they  were  discharged  without  their  consent. 

Curia,  per  Evans,  J.  It  is  on  the  application  of  the  plaintiff,  and 
for  his  benefit,  that  the  body  of  the  defendant  is  arrested,  and  held  in 
custody  of  the  sheriff,  or  the  custody  of  his  bail,  to  satisfy  the  plaintiff's 
judgment  when  rendered.  Being,  as  it  certainly  is,  a  mere  security  for 
the  plaintiff,  I  am  at  a  loss  to  conceive  of  any  reason  why  he  may  not 
waive  this  advantage  by  releasing  the  bail,  or  by  discharging  the  defend- 
ant from  the  custody  of  the  sheriff.  The  only  supposable  objection  that 
has  been  urged  is,  that  the  plaintiff  may  again  arrest  him,  and  thus 
harass  the  defendant  by  discharges  and  fresh  arrests.  Prior  to  the  Act 
of  1827,(6)  no  bail  could  be  required  pending  the  suit,  and  the  object  of 
that  Act  was  to  remedy  this  defect  of  the  law.  Without  expressing  any 
definite  opinion  on  the  subject,  I  think  it  may  well  be  questioned  whether 
a  defendant  can  be  arrested  pending  a  suit,  when  he  had  been  previously 
arrested  and  held  to  bail  by  the  plaintiff,  and  by  him  discharged  ;  so  that 
*98<^1  it  is  not  likely  that  the  ^supposed  evil  can  ever  arise.  I  see  noth- 
-'  ing,  therefore,  either  in  reason  or  in  the  authority  of  any  decided 
case,  which  will  prevent  the  plaintiff  from  discharging  the  defendant  from 
the  custody  of  the  sheriff,  as  was  done  in  this  case  ;  the  effect  of  which  is 
to  restore  the  defendant  to  his  liberty,  and  to  authorize  him  to  go  where- 
soever he  pleases.  If  he  remains  after  this,  his  residence  in  the  jail  or 
the  prison  rules  is  entirely  voluntary,  and  of  his  own  free  will. 

But  it  is  supposed  that  by  the  arrest,  the  defendant  has  acquired  a 
right  to  make  an  assignment  of  his  property  under  the  Act  of  the  Legis- 
lature, passed  for  the  relief  of  insolvent  debtors,  of  which  the  plaintiff 
cannot  deprive  him  by  a  discharge  against  his  consent.  I  am  unable  to 
discover  from  whence  such  right  is  derived  ;  if  it  is  found  any  where,  it 
must  be  in  the  Act  of  1759, (c)  under  which  the  defendant  claims  to  be 
discharged  from  the  plaintiff's  debt,  as  well  as  the  debts  of  all  his  suing 
creditors,  upou  an  assignment  of  his  schedule.  I  think  there  can  be  but 
little  doubt  that  after  the  discharge,  the  defendant  can  no  longer  be 
regarded  as  a  prisoner  ;  his  remaining  in  the  jail  is  of  his  own  accord,  and 
not  by  any  compulsion  of  the  plaintiff.  Let  us  now,  by  examining  the 
insolvent  laws,  see  whether  such  a  person  is  entitled  to  the  benefit  of  its 
provisions.  The  first  clause  begins  by  declaring  that  any  one  arrested 
may,  within  one  month  after  he,  she,  or  tliey  shall  be  taken  into  custody, 
exhibit  a  petition,  setting  out  the  causes  of  his,  her,  or  their  imprison- 
ment. In  another  part  of  the  same  clause,  it  is  said  the  Court  shall,  in 
a  suinmury  way,  examine  into  tlie  matter  of  the  said  petition,  and  shall 
hear  wliat  shall  l)e  alleged  against  the  discharge  of  the  said  petitioner. 
The  oath  to  be  administered  to  him  is  that  he  has  been  a  prisoner  in  the 
common  jail,  without  his  consent  or  procurement.  The  12tli  section 
provides  that  no  one  shall  be  entitled  to  the  benefit  of  the  Act,  unless 
such    person    shall   have   actually   remained   confined    in   the    common 

(a)  6  Stat.  1.    An.  {h)  6  Stat.  337,  g  3.    An.  (c)  4  Stat.  56.    An. 


*288]  CLARKE    ET  AL.    VS.    SIMPSON.  189 

jail,  &c.  The  IStli  section  authorizes  the  justices,  in  case  they  suspect 
the  person  applying  has  not  rendered  in  a  true  account  of  his  estate,  to 
re-coramit  such  person  to  the  common  jail,  there  to  remain.  The  20th 
section  makes  the  arresting  creditor  "liable  for,  and  chargeal)le  with,  the 
fees  due  to  the  provost  marshal,  for  the  arrest  and  imprisonment  of  such 
person."  In  the  Act  of  1788, («)  we  find  the  persons  entitled  to  the 
benefit  *of  that  Act,  described  in  the  2d  section,  as  those  com-  r^jt^oq 
mitted  on  mesne  process ;  in  the  3d  section,  as  prisoners  in  L 
execution;  in  the  4th  section,  as  any  person  "  confined  on  mense  pro- 
cess.'^ The  fifth  section  extends  the  benefit  of  the  Act  of  1759  to  all 
persons  "confined  on  mense  process  in  any  civil  action,  or  on  execution.'''' 
These  and  similar  expressions  are  to  be  found  in  almost  every  section  of 
the  Acts  of  1759  and  1788,  and  show  most  clearly  that  none  are  entitled 
to  the  benefit  of  these  Acts,  except  prisoners,  those  who  are  confined 
witliin  the  jail  bounds  ;  for  the  prison  rules  are  but  the  enlargement  of 
the  jail.  Does  the  defendant  come  within  the  provisions  of  these  Acts  ? 
Can  he  be  regarded  as  one  confined  on  mesne  process,  after  the  plaintiff 
has  discharged  him  from  the  arrest?  Is  not  his  remaining  in  the  jail,  or 
the  jail  bounds,  after  this,  entirely  voluntary?  And  if  so,  can  he  swear 
he  has  been  confined  without  his  consent?  After  his  discharge  he  was 
at  liberty  to  go  wheresoever  he  pleased.  He  was  no  longer  a  prisoner, 
or  one  restrained  of  his  liberty.  Upon  a  careful  examination  of  the  pro- 
visions of  these  Acts,  I  am  satisfied  a  defendant  has  no  other  rights  under 
them,  than  the  right  to  be  set  at  large  and  freed  from  imprisonment  upon 
a  surrender  of  his  estate;  and  if  he  be  discharged  by  the  voluntary  act  of 
the  plaintiff,  the  object  of  the  law  is  obtained,  and  the  debtor  can  ask  no 
more.  To  authorize  him  to  do  what  is  claimed  by  the  defendant,  would 
be  to  enable  him,  by  remaining  voluntarily  in  jail,  to  make  an  assignment 
whereby  the  debt  of  the  plaintiff,  and  the  debts  of  all  suing  creditors  are 
extinguished,  against  the  will  of  his  creditors;  and  more  than  this,  he 
may  subject  the  plaintiff  to  the  payment  of  his  legal  fees,  for  the  Act  of 
1759,  and  the  Act  of  1817,  both  make  the  plaintiff  chargeable  with  the 
expenses  of  the  imprisonment,  in  the  event  the  assets  assigned  are  not 
sufiBcieni.  These  Acts  go  on  the  supposition  that  as  the  expenses  are 
incurred  at  the  plaintiff's  instance,  he  ought  to  pay  in  the  event  they  are 
not  paid  by  the  defendant  or  out  of  his  assigned  estate ;  but  nothing 
could  be  more  unreasonable  than  this,  where  the  defendant  remains  in 
jail  voluntarily  and  against  the  will  of  the  plaintiff.  Suppose  the  action 
should  abate,  or  the  plaintiff  should  discontinue,  or  be  nonsuited,  can  the 
defendant  still  go  on  and  be  discharged  from  an  action  when  none  is  pend- 
ing against  him  ?  It  was  recently  decided  in  a  case  in  Charleston,  not 
yet  reported,  and  I  do  not  remember*  the  names  of  the  parties,  r^gnn 
that  the  defendant  was  not  entitled  to  the  benefit  of  the  Act,  ^  "^ 
where  the  plaintiff  had  discontinued  his  suit,  I  do  not  remember  whether, 
in  that  case,  the  discontinuance  was  before  or  after  the  defendant  had  filed 
his  schedule,  and  given  his  notice;  but  I  ap|)rehend  that  fact  is  immate- 
rial and  cannot  vary  the  result.  The  oath  he  is  required  to  take  is,  that 
he  has  been  confined  from  the  time  of  his  being  arrested,  at  the  suit  of 
,  without  his  consent  or  procurement.     How  can  this  defendant 

(a)  5  Stat.  78.     An. 


190  COLUMBIA,    MAY,    1841.      VOL.  I.  [*290 

swear  he  has  been  confined  from  the  time  of  his  being  arrested,  at  the 
suit  of  the  plaintiff",  when  he  had  been  discharged  from  his  confinement 
in  jail,  near  two  montlis  before?  After  his  discharge,  his  confinement 
was  vohmtary.  The  object  of  the  insolvent  Acts,  it  seems  to  me,  is  to 
enable  the  defendant,  by  a  surrender  of  his  property,  to  discharge  himself 
from  imprisonment,  if  his  creditor  persists  in  keeping  him  in  jail;  but  the 
end  is  already  obtained,  where  the  creditor  voluntarily  releases  him  from 
confinement.  Every  clause  in  the  Act  shows  that  at  the  time  the  appli- 
cation is  made,  the  applicant  must  be  an  imprisoned  debtor.  The  defend- 
ant is  not  in  that  condition,  and,  therefore,  the  motion  is  granted. 

Richardson,  O'Neall  and  Butler,  JJ.,  concurred.      Gantt,  J., 
dissented. 

See  N.  Colien's  case,  Cliarleston,  January,   1S59,  11  Rich.      An.      Sleeper  ^ 
Fenner  vs.  N.  A.  Cohen. 


*291]        CuTHBERT  Price,  Executor,  vs.  Samuel  Price. 

Where  a  general  demurrer  has  been  overruled,  the  adverse  party  have  the  right 
to  enter  up  judgment  on  the  matter  in  controversy,  unless  the  demurring  party 
obtain  special  leave  to  plead  over  at  the  time  the  demurrer  is  overruled. 

Before  Butler,  J.,  at  Chester,  Spring  Terra,  1841 

The  plaintiff  in  this  case  had  filed  a  general  demurrer  to  the  defend- 
ant's special  plea,  which  admitted  all  that  was  stated  in  it.  The  Court 
of  Appeals,  on  a  former  trial  of  this  case,  overruled  the  demurrer,  and 
the  Circuit  Court  gave  the  defendant  leave  to  enter  up  judgment  on  the 
plea ;  from  which  the  plaintiff  appeals. 

GROUNDS   OF   APPEAL. 

1.  That  the  plaintiff  had,  under  the  circumstances  of  the  case,  a  legal  right 
to  reply  to  tlie  dd'cndaiit's  plea  of  former  recovery. 

2.  iiecause  the  plaiiitiir  should  have  been  permitted  to  go  to  trial,  he  having 
moved  for  leave  so  to  do  after  the  Court  had  refused  plaintiff  leave  to  reply  to 
the  defendant's  demurrer  sustained,  as  phuntift"  contends  he  can  recover  in  the 
case,  even  admitting  the  donuirrer  to  defendant's  plea  is  permitted  to  stand,  or 
rather,  is  overruled. 

Curia,  per  Butler,  J.  On  a  former  occasion  it  was  decided  by  this 
Court,  that  defendiint's  plea  was  an  entire  bar  to  plaintiff's  action. 
Judge  Earlc,  who  delivered  the  opinion  of  the  Court,  makes  this  remark : 
"But  whatever  may  be  the  effect  of  the  record,  when  exhibited  to  the 
Court,  in  support  of  the  plea,  it  is  considered  here,  that  there  is  enough 
on  the  face  of  the  plea  itself,  to  constitute  a  good  bar,  if  it  be  verified  by 
the  rec<jrd."  We  think  that  by  the  terms  of  the  plea,  which  were  ad- 
mitted by  the  demurrer,  the  plaintiff  was  precluded  from  giving  evidence 
to  contradict  it.  He  must  be  bound  by  his  admission  on  the  record  ; 
and  the  defendant's  plea  being  admitted  by  demurrer,  he  was  not  bound 
to  verify  it  by  evidence.  We  will  not  say  that  plaintiff  might  not  have 
obtained  leave  from  the  Court  of  Appeals,  before  its  judgment  was  finally 


*291]  DIAL    AND    HENDERSON    Ctds.    FARROW.  191 

delivered,  to  withdraw  his  demurrer,  with  leave  to  reply  to  defendant's 
plea.  He  made  no  such  motion  to  the  Court,  *\vhen  it  had  the  r:m;)Qc> 
case  under  consideration,  and  the  Circuit  Judge  was  bound  to  ^  ^^  "" 
make  the  decision,  from  whicli  the  plaintiff  has  appealed  on  this  occasion. 
Where  a  general  demurrer  is  overruled,  the  adverse  party  has  a  right  to 
enter  up  judgment  on  the  matter  in  controversy,  unless  the  demurring 
party  obtains  special  leave  to  plead  over  at  the  time  the  demurrer  is 
overruled.     Motion  dismissed. 

The  whole  Court  concurred. 

Thomson  and  Eaves,  for  the  motion.     R.  G.  Mills,  contra. 

See  7  Rich.  432.     5  Stob.  157.     1  N.  &  McC.  88,  108.     2  McM.  292,  and  cases  in 
note  there.     Smith  vs.  Singleton,  Charleston,  February,  1852. 


Mary  Dial  and  W.  Henderson  ads.  P.  Farroav. 

A  Court  of  Law  has  the  power  to  vacate  or  set  aside  its  own  judgments,  when  ob- 
tained by  or  founded  in  fraud. 

The  proper  coarse  to  pursue,  where  a  judgment  is  sought  to  be  vacated,  and  affi- 
davits are  submitted  by  the  defendant,  is  to  take  out  a  rule  for  the  plaiutilF,  re- 
turnable to  the  next  term  of  the  Court,  to  show  cause  why  the  judgment  should 
not  be  set  aside. 

Before  Gantt,  J.,  at  Laurens,  Spring  Term,  1841. 

This  was  a  motion  to  open  a  judgment,  and  for  leave  to  appear  and 
plead  to  the  case,  or  that  the  defendant  have  leave  to  fde  a  suggestion 
to  try  the  validity  of  the  same.  Tiiis  application  was  founded  on  the 
affidavits  of  Mary  Dial  and  William  Henderson,  stating  positively  that 
they  never  signed  either  the  note  or  confession  of  judgment,  or  authorized 
any  other  person  to  do  it  for  them  ;  and  upon  the  affidavit  of  Wm.  C. 
Gary,  whose  name  appears  to  be  signed  as  the  subscribing  witness  to  the 
confession  of  judgment,  that  he  never  signed  said  confession  of  judgment 
as  a  witness,  or  ever  knew  any  thing  about  it,  until  after  G.  C.  Deal  left 
this  State  ;  and  that  he  is  *well  acquainted  with  the  handwriting  (-:(:qqq 
of  Mary  Dial  and  W.  Henderson,  and  their  names  to  the  note  and  ^ 
confession  of  judgment  are  not  their  handwriting. 

His  Honor  refused  to  hear  the  motion,  on  the  ground  that  the  Court 
had  no  jurisdiction  ;  from  which  the  defendants  appeal,  and  renew  the 
motion  before  the  Appeal  Court,  on  the  ground  that  the  Court  had 
jurisdiction,  and  the  motion  should  have  been  granted. 

Curia,  per  O'Neall,  J.  That  the  Court  of  Law  has  not  the  power 
to  set  aside  its  own  judgments,  when  founded  in  fraud,  would  be  a  strange 
proposition.  For  certainly  if  the  judgment  becomes  thereby  void,  and 
another  tribunal  could  relieve  against  it,  there  can  be  no  good  reason 
why  the  Court  pronouncing  the  judgment  should  not  vacate  it.  Indeed, 
there  is  great  propriety  in  a  Court  vacating  its  own  judgment,  when  it  is 
rendered  under  such  circumstances  of  mistake,  fraud,  or  surprise,  as  would 
entitle  the  party  to  relief  elsewhere.     Tlie  case  of  Posey  vs.  Underwood, 


192  COLUMBIA,   MAY,    1841.      VOL.  I.  [*293 

(1  Hill,  262,)  states  the  true  rule.  The  power  of  setting  aside  judg- 
ments, it  remarks,  "is  exercised  as  between  the  parties,  on  matters  out  of 
and  beyond  the  record,  as  when  a  judgment  has  been  obtained  by  duress, 
by  misrepresentation  to  the  defendant,  or  an  abuse  of  the  process  of  the 
Court.'' 

The  case  made  by  the  affidavits  is,  that  the  confession  was  not  signed 
bv  the  defendants,  Mary  Dial  and  William  Henderson.  If  this  be  so, 
the  predicate  of  the  judgment  is  destroyed,  and  the  Court  had  no  power 
to  give  it,  and  it  is  as  much  a  duty  to  set  it  aside,  as  it  would  be  to  set 
aside  a  judgment  where  the  defendant  had  not  been  served  with  process. 
I  think  it  is  very  probable,  from  the  affidavits  submitted  on  the  part  of 
the  plaintiff,  that  there  is  no  foundation  in  fact  for  the  motion  to  vacate 
the  judgment. 

Whether  there  is  or  is  not,  it  is  perfectly  clear  that  no  blame  can  attach 
to  the  plaintiff,  for  if  the  defendants  have  been  improperly  subjected  to 
the  judgment,  it  has  been  by  the  forgery  of  their  co-defendant,  G.  C. 
Dial,  committed  with  a  view  to  defraud  the  plaintiff.  The  collision 
between  the  affidavits  makes  it  necessary  that  the  case  should  pursue  the 
only  course  by  which  truth  can  be  elicited — a  trial  by  jury.  The  proper 
*9qil  course  would  have  been,  on  the  showing  of  the  defendants,. to  *have 
-'  granted  a  rule  against  the  plaintiff,  returnable  to  the  next  term,  to 
show  cause  why  the  judgment  should  not  be  set  aside,  and  to  have 
directed  that  the  affidavits  submitted  l)y  the  defendants  should  be  filed. 
To  them  the  plaintiff  would  have  answered  by  filing  counter  affidavits. 
But  as  affidavits  on  both  sides  have  been  submitted,  and  the  conflict  in 
fact  is  apparent,  the  order  will  be  made  at  once,  which  the  Circuit  Judge 
might  have  made.  The  motion  to  reverse  the  decision  below  is  granted. 
The  affidavits  submitted  by  the  defendants  and  plaintiff,  are  ordered  to 
be  filed  in  the  clerk's  office  of  Laurens  District,  and  the  defendants  have 
leave  to  file  their  suggestion  to  set  aside  the  judgment  of  PatiUo  Farrow 
vs.  G.  C.  Di'il,  3Iarij  Dial,  and  Wm.  Henderson,  on  entering  into  a 
consent  rule  to  pay  to  the  plaintiff  all  costs  which  he  may  incur  thereby, 
if  they  should  fail  in  setting  aside  the  said  judgment;  and  the  said 
plaintiff  is  ordered  to  plead  to  the  said  suggestion  so  to  be  filed.  The 
defendants  to  be  the  actors  in  the  said  suggestion. 

The  whole  Court  concurred. 

Irby,  for  the  motion.      Young,  contra. 

See  4  Rich.  168,  512;  6  Rich.  491,  495  ;  1  Sp.  39,  114.     An. 


Tim;  Ownkrs  (;p  the  Steamer  St  Matthews  vs.  I.  D.  Mordecai. 

Where  tlic  plaiiitifTa  flcmmid  has  boon  reduced  by  a  discount  below  the  sum.  pro. 
jurisdiction,  tlie  practice  is  to  give  a  decree  for  the  balance. 

Before  O'Neall,  J.,  Richland,  Spring  Term,  1841. 

This  was  a  srnn.  pro.  to  recover  the  freight,  $32.49,  on  certain  articles 

shipj.od    from    Charleston   to    Columbia,    on    board    the    Steamer    St. 

*295]  ^'"tthews.     She  reached  her  usual  port  of  delivery,  *Granby. 

She  could  not,  at  any  time,  ascend  further  up  the  river.     The 


*295]  STEAMER  ST.  MATTHEWS    VS.    MORDECAI.  193 

goods  of  the  defendant  were  delivered  to  a  wagoner,  to  Ijc  by  hira 
delivered.  This  was  the  course  usually  pursued.  A  part  of  them  came 
)iropcr!y  to  hand.  A  parcel  of  buckets  were  sent  to  Union  district. 
After  some  time  they  were  recovered  by  the  agent  of  the  boat,  except 
two,  which  were  lost.  Sixteen  were  injured.  The  defendant  refused  to 
accept  them ;  but,  at  last,  did  receive  them  into  his  store,  and  had  a 
survey  made  by  Mr.  Solomons,  who  said  that  the  two  lost  were  worth 
$6,  and  the  sixteen  damaged  were  injured,  each.  Si.  The  defendant 
relied  on  a  discount  for  the  lost  and  damaged  articles,  as  well  as  on  the 
defence,  that  the  steamer  did  not  deliver  the  goods  shipped. 

I  allowed  the  defendant  a  discount  of  $22,  and  gave  plaintiff  a  decree 
for  $10  41).     The  defendant  appeals  on  the  annexed  grounds. 

1.  That  the  culpable  negligence  of  a  carrier  ought  to  vitiate  his  whole  claim 
under  liis  impliod  contract,  which  he  has  wilfully  neglected  to  fulfil. 

2.  'I'hatthe  defendant,  having  expressly  refused  to  accept  his  damaged  goods, 
ought  not  to  have  been  held  to  have  accepted  them  at  their  damaged  value, 
only  because  he  allowed  them  to  lie  in  his  store. 

.^.  Because  his  Honor  gave  judgment  for  a  sum  less  than  the  jurisdiction  of 
the  Court. 

Cheves,  for  the  motion,  cited  3  Hill,  202;  Caldtvell  vs.  Garmany ;  Saunders  vs. 
Gage,  Clieves,  165,  and  said  the  plaintiff  was  not  entitled  to  freiglit  until  the 
goods  were  delivered.  The  plaintilT,  said  Mr.  C,  was  proved  to  have  kno-wn  the 
amount  of  this  discount. 

Gregg  and  Gregg,  contra. 

Curia  ])er  O'Neall,  J.  The  motion  for  a  new  trial  in  this  case, 
has  been  at  rest  altogether  upon  the  3d  ground.  As  to  which,  it  may  be 
remarked,  that  the  defence  of  the  defendant  arose  altogether  from  a 
matter  of  which  he  could  only  avail  himself  by  discount.  For  the  plain- 
tiffs proved  their  title  to  demand  their  freight,  $32  49,  by  showing  a 
delivery  of  all  the  *articles  shipped  on  board  the  steamer,  except  rifo^c 
two  buckets.  For  the  value  of  these,  and  the  injury  done  to  six-  '-  "^ 
teen  others,  in  their  travel  to  Union  and  back  again,  the  defendant  was 
entitled  to  compensation.  This  was  clearly  a  cross  demand  by  way  of 
discount,  Ewart  vs.  Kei'r,  (Rice's  Rep.  205.).  Where  the  plaintiff's 
demand  is  reduced  by  a  discount,  to  a  sum  below  a  magistrate's  juris- 
diction, the  practice  has  been  uniform,  to  give  a  decree  of  such  balance. 
It  is  clearly  distinguishable  from  the  case  where  the  demand  is  reduced 
by  payments.  There,  the  plaintilf  has  no  right  to  demand  more  than 
the  balance  left  after  deducting  the  ])ayments.  But  where,  as  in  this 
case,  the  defence  arises  from  matter  which  may,  or  may  not  be  applied 
to  the  reduction  of  the  plaintilFs  demand,  and  which,  therefore,  can  only 
be  insisted  on  by  way  of  discount,  it  does  not  have  the  effect  of  sending 
the  plaintiff  to  an  inferior  jurisdiction,  if  his  demand  should  be  thereby 
reduced  to  a  sum  of  which  a  magistrate  has  cognizance. 

The  case  of  Smith  vs.  McMa>^ters,  (3  McC.  288,)  is  an  illustration 
of  the  rule.  The  plaintiff  there  sued  for  $48,  the  defendant  pleaded  a 
discount,  the  plaintiff  had  a  decree  for  75  cents.  It  was  held  that  the 
plaintiff  was  entitled  to  tax  process  costs  against  the  defendant. 

The  motion  is  dismissed. 

The  whole  Court  concurred. 

See  Owens  vs.  Curry  3  Strob.  2G1.     Vaughn  vs.  Cade,  2  Rich.  50.  An. 
YOL.  l.—U 


194  COLUMBIA,    MAY,    1841.       70L.  I.  [*297 

*29'7]  *Jane  Steele  vs.  Jennings  &  BEATY.(a) 

A  promise  by  oue  co-partner,  after  dissolution  of  partnership,  cannot  create  a  new 
liability  against  the  other  partners  on  a  simple  contract,  barred  by  the  Statute 
of  Limitations  before  the  dissolution. 

A  defendant  is  not  precluded  from  availing  himself  of  the  Statute  of  Limitations, 
by  the  remark  of  his  counsel,  in  argument,  "that  his  client  would  scorn  to  take 
advantage  of  the  statute,  if  it  coiild  be  made  to  appear  that  the  money  had  been 
applied  to  the  business  of  the  firm." 

Before  Butler  J.,  at  York,  Spring  Terra,  1841. 

This  was  an  action  of  debt,  nominally  against  both  defendants,  the 
real  object  of  which,  however,  was  to  make  Beaty  liable  for  money 
borrowed  by  Jennings  alone,  but  borrowed  in  the  name  of  the  firm  of 
Jennings  &  Beaty,  whilst  they  were  partners  in  trade.  Defence — general 
issue  and  statute  of  limitations.  In  1828,  Jennings  borrowed  of  plaintiff 
$100,  in  the  name  of  Jennings  &  Beaty,  and  gave  a  sealed  note  for  the 
amount,  signed  Jennings  &  Beaty.  In  the  latter  part  of  the  year  1832, 
the  co-partnership  was  dissolved,  the  sign  taken  down,  and  the  goods 
divided.  In  188T,  for  the  first  time,  demand  was  made  on  Jennings  for 
payment  of  the  note.  He  said  then,  and  frequently  afterwards,  that  the 
money  was  justly  due,  and  should  be  paid  when  he  made  collections. 
He  became  insolvent  and  unable  to  pay,  and  this  action  was  brought 
against  Beaty  in  1839  or  '40.  He  resisted  judgment,  in  the  first  instance 
on  the  ground  that  he  was  neither  liable  on  the  sealed  note,  nor  for 
money  borrowed,  as  it  had  been  borrowed  by  Jennings,  without  his  con- 
sent, and  not  for  the  use  of  the  firm.  I  was  entirely  satisfied  that  Jen- 
nings had  borrowed  the  money  on  the  credit  of  Beaty's  name,  but  had 
applied  it  exclusively  to  his  own  use.  This  action,  so  far  as  Beaty  is 
concerned,  must  be  regarded  as  brought  on  the  demand  for  money  lent, 
and  the  question  is,  has  the  demand  been  barred  by  the  statute  of  limi- 
tations. The  statutory  bar  was  complete  some  time  in  1832,  and  more 
than  four  years  had  elapsed  from  that  time  till  the  demand  on  Jennings, 
when  he  promised  to  pay  the  debt.  The  {juestion  is,  can  one  partner  be 
made  lialjje  on  an  assumpsit  of  another,  made  more  than  four  years  after 
the  dissolution  of  a  co-partnership.  I  held  not,  and  the  jury  found  for 
the  defendants. 

*298l       *'^'^''^  plaintiff  appeals,  on  the  following  grounds: 

J       1.  Because   his   Honor,  Judge   Earle,   erred   in   granting   leave,  :.t 
Chester,  to  the  defendants,  to  plead  the  statute  of  limitations. 

2.  Because  his  Honor,  Judge  Butler,  erred  in  charging  the  jury  that  the 
acknowledgment  and  promise  by  the  defendant,  Jennings,  to  pay  the  debt,  was 
not  binding  upon  the  defendant,  Beaty. 

3.  Because  ills  Honor  erred  in  charging  the  jury  that  the  defendant's.  (Beaty,) 
solemn  promise,  made  at  the  time,  not  to  plead  the  statute  of  limitations,  was 
not  l)iiuliiig  upon  him. 

A.  jr.  Thomson,  for  the  motion,  contended  that  the  co-partnership,  (as  he  under- 
stood tlio  law,)  was  still  in  existence,  so  far  as  this  plaintiif  was  concerned,  and  the 
declarations  of  .(ennings,  down  to  this  day,  are  binding  upon  Beatty.  The  plaintiff 
must  liav(!  noticf'  of  tlie  dissolution,  and"  it  must  be  proved  that  she  had  notice  of 
such  dissohition.  Cited  J  Salk.  Itop.  29;  2  Doug.  Kep.  022.  A  promise  of  one 
partner,  after  dissolution,  may  bind  the  oth(<r,  by  a  promise  concerning  a  partner- 
ship dfbt.  3  Johnson,  WM)  ;  0  id.  207  ;  10  id.  35  ;  If.  /(/.  409  ;  2  Const.  Rep.  Ill ; 
2  Tread.  Const.  GSf^ ;  2  Bay  Rep.  523  ;   1  M'Cord,  541  ;   3  id.  278. 

a.  Williams,  contra,  submitted  the  case.  (a)  S.  C.  before  Chev.  183. 


♦298] 


SILK    COMPANY   VS.    ANDERSON.  195 


Curia  per  Butler,  J.  So  far  as  it  regarded  Beaty,  this  was  origi- 
nally a  simple  contract,  and  was  barred  by  the  statute  of  limitations  in 
1832,  or  at  furthest,  in  1833.  During  the  existence  of  the  co-partner- 
ship, Jennings  was,  to  some  extent,  confining  himself  to  the  business  of 
the  firm,  the  agent  of  Beaty,  and  might  subject  him  to  liability  for 
contracts  made  ow  the  credit  of  his  name.  After  their  partnership 
connection  had  ceased,  as  it  did,  by  a  notorious  dissolution  in  1832, 
Jennings  had  no  power  to  create  a  new  liability  against  Beaty. 
Now,  what  is  the  state  of  the  case  ?  Nine  years  after  a  right  of  action 
had  accrued,  and  four  years  after  it  was  completely  barred  by  the  statute 
of  limitation,   and  when  in  effect  it  was  paid,   and  five  years  after  the 


dissolutian  of  the  co-partnership,   *an  attempt  is  made  to  make 


[*290 


Beaty  liable  on  the  acknowledgment  of  Jennings.  In  effect,  the 
proposition  contended  for,  is  to  perpetuate  the  agency  of  one  partner,  to 
create  new  debts  against  another.  In  1833,  this  demand  against  Beaty 
might  be  regarded  as  entirely  extinguished  ;  and  at  that  time,  Jennings 
had  no  control  over  his  former  partner's  contracts,  which  were  not  then 
subsisting.  His  acknowledgment,  therefore,  made  in  1831,  can  have  no 
effect  on  the  liability  of  Beaiy,  who,  it  would  seem,  had  no  notice  of  this 
demand  until  a  short  time  before  this  action  was  brought. 

It  was  contended,  however,  that  the  plaintiff  had  no  notice  of  the  dis- 
solution. After  such  a  lapse  of  time,  where  the  parties  live  in  the  same 
neighborhood,  as  they  did  here,  all  concerned  may  be  very  well  presumed 
to  have  notice  of  the  fact  of  dissolution. 

The  last  ground  of  appeal,  perhaps,  requires  some  explanation.  On 
the  former  trial  of  this  case,  the  counsel  of  Beaty,  in  his  argument  to  the 
jury,  remarked,  that  his  client  would  scorn  to  take  advantage  of  the 
statute,  if  it  could  be  made  appear  that  the  money  borrowed  had  been 
applied  to  the  business  of  the  firm.  This  was  the  extent  of  Beaty's  pledge 
not  to  plead  the  statute,  and  there  is  certainly  nothing  in  it  to  preclude 
him  frt)m  availing  himself  of  it  now.  It  was  not  made  by  himself,  and 
he  is  not  satisfied  that  Jennings  applied  the  money  to  the  firm.  Judge 
Earle's  order  being  suflicient  authority  for  filing  the  plea,  the  motion  is 
dismissed. 

The  whole  Court  concurred. 

See  4  Strob.  220  ;   G  Rich.  219-29  ;  9  Rich.  44.     An. 


[*300 


*J.  Ramey,  Treasurer  of  the  Abbeville  Silk  Company,  vs. 
W.  C.  Anderson,  (a) 

A  promise  to  pay  the  "  Treasurer  of  the  Abljeville  Silk  Company,"  is  binding 
upon  tlie  subscribers  to  the  stock  of  said  company  ;  and  an  action  may  be  main- 
tained against  any  subscriber  who  does  not  pay  up  his  subscription,  by  any  one 
who  may  be  Treasurer  at  the  time  the  action  is  to  be  commenced. 

Before  Evans,  J.,  at  Attbeville,  Spring  Term,  1841. 

This  case  presents  the  following  facts  : 

The  defendant,  with  others,  were  members  of  an  unincorporated  asso- 

(a)  Cited  9  Rich.  259. 


196  COLUMBIA,   MAY,    1841.      YOL.  I.  [*300 

ciation,  called  the  Abbeville  Silk-growing  Company.  The  company  had 
been  organized,  and  officers  appointed.  The  capital  stock  consisted  of 
shares,  each  member  subscribing  for  a  certain  number.  The  defendant 
subscribed  for  ten  shares.  By  the  articles  of  association,  signed  by  the 
members,  each  subscriber  promised  to  pay  the  value  of  his  shares,  in  cer- 
tain instalments,  when  required  by  a  resolution  of  the  company.  One 
instalment  was  called  for,  which  defendant  refused  to  pay.  By  the  arti- 
cles, the  subscribers  promised  to  pay  the  treasurer  of  the  company. 
Dendy  was  the  first  treasurer,  and  probably  held  the  office  when  the 
articles  were  signed,  but  the  plaintiff  was  treasurer  when  tho  action  was 
brought.  I  considered  the  promise  to  pay  as  binding,  and  the  action 
might  be  brought  in  the  name  of  any  one  who  was  treasurer  at  the  time, 
and  decreed  for  the  plaintiff. 

The  defendant  appeals,  and  will  move  to  reverse  the  decree : 

Because  the  Treasurer  of  the  Abbeville  Silk  Company  being  neither  a  public 
officer  nor  a  corporation  sole,  the  plaintiff  showed  uo  right  to  maintain  this 
action. 

Curia,  per  Evans,  J.  The  Abbeville  Silk-growing  Company  is  not 
a  corporation.  It  is  a  mere  co-partnership,  and  of  course,  as  the  de- 
fendant is  one  of  the  company,  the  others  cannot  sue  him  at  law,  and  if 
this  action  cannot  be  maintained,  no  other  person  can  sue.  It  is  not 
intended  to  controvert  the  truth  of  the  general  proposition  that  the  action 
must  be  in  the  name  of  him  who  has  the  beneficial  interest  in  the  con- 
*^ni  1  tract.  If  a  contract  be  made  with  an  agent,  for  the  use  and  *benefit 
J  of  his  principal,  the  action  must  be  in  the  name  of  the  principal. 
That  was  decided  in  the  case  oi  Pigott  vs.  Tliompwn,  (3  Bos.  &  Pul.  148 ;) 
Allen  vs.  Braaier,  (2  Bailey,  55,)  and  in  various  other  cases.  But  in 
ail  these  cases,  those  entitled  to  the  beneficiary  interest,  were  either  per- 
sons or  corporations  who  could  sue.  In  the  case  under  consideration, 
the  very  object  of  the  stipulation  to  pay  to  the  treasurer  may  have  been 
to  avoid  this  very  objection.  It  is  a  contract  valid  and  binding  in  law, 
founded  on  sufficient  consideration,  and  ought  not  to  fail  on  account  of 
an  objection  which  it  seems  to  me  the  defendant  waived,  when  he  entered 
into  the  contract.  But  it  is  further  objected,  that  even  if  the  defendant 
is  liable  to  an  action  at  the  suit  of  the  treasurer,  he  is  only  liable  to  him 
who  was  treasurer  at  the  time  of  the  contract,  or  to  him  who  was  treas- 
snrer  first.  It  is  somewhat  uncertain,  on  the  evidence,  whether  at  the 
time  the  constitution  or  articles  of  association  were  signed,  there  was 
any  treasurer  designated.  It  is  more  than  likely  the  articles  were  signed 
before  tliere  was  any  election  of  officers.  But,  be  that  as  it  may,  I 
think  it  wlndly  immaterial  as  to  this  case.  The  general  rule  is,  a  con- 
tract made  with  an  agent,  does  not  devolve  on  his  successor,  except  in 
the  case  of  pul)iic  officers,  corporations  sole,  and  perhaps  some  other 
cases.  In  this  case,  the  money  was  not  payable  immediately.  The  con- 
tract was  to  i)ay  at  such  time  and  in  sucl/  sums  as  the  company  should 
require.  The  fair  interi)rctation  then  is,  that  the  defendant  promised(a) 
to  pay,  when  called  on  Ijy  a  resolution  of  the  company,  such  sums  as 
might  be  required,  to  him  who  then  held  the  office  of  treasurer.     The 

(a)  To  whom  ?     An. 


*301]  COXE    vs.    GENT.  197 

plaintiif  answers  to  this  description  of  the  payee.  He  alone  could  dis- 
charge the  debt.  He  had  an  interest  in  the  contract,  because  he  was 
entitled  to  commissions ;  and  as  no  one  else  could  maintain  an  action 
upon  the  contract,  it  has  been  properly  brought  in  his  name,  and  the 
motion  is  dismissed. 

Gantt,  Richardson,  and  O'Neall,  JJ.,  concurred. 

Wardlaw  and  Perrin,  for  the  motion.      Wilson,  contra. 

See  4  Rich.  100.     An. 


*Wm.  Coxe  vs.  J.  Gent.  [*302 

When  a  case  is  referred  to  arbitration,  the  object  is  to  supersede,  by  the  judgment 
of  the  arbitrators,  the  verdict  of  a  jury.  It  would  follow,  that  the  award  should 
be  either  for  a  certain  sum  ascertained,  or  for  a  sum  capable  of  being  ascer- 
tained by  reference  to  some  part  of  the  record. 

Before  Evans,  J.,  at  Abbeville,  Spring  Term,  1841. 

This  case  came  up  under  the  following  statement  of  facts  : 

An  action  was  pending  by  the  plaintiff  against  the  defendant  on  a 
note  signed  "  Fielding  and  Jesse  Gent."  By  an  agreement  between  the 
parties,  at  or  before  the  last  Court,  the  case  was  to  be  marked  continued, 
and  was  to  be  settled  by  the  award  of  arbitrators.  The  award  to  be 
final,  as  the  judgment  of  the  Court.  The  arbitrators  were  chosen  and  an 
award  was  made,  as  follows  :  "  The  undersigned,  a  majority  of  the  per- 
sons chosen  to  arbitrate  and  settle  the  case  between  Wm.  Cox,  Senr., 
plaintiff,  and  Jesse  Gent,  defendant,  in  relation  to  a  certain  note,  made 
payable  to  said  Cox,  by  Fielding  Gent,  with  Jesse  Gent's  name  signed, 
have  heard  the  evidence,  and  according  to  their  judgment  of  the  facts,  do 
find  for  the  plaintiff  the  amount  of  the  note." 

At  this  term  the  plaintiff's  attorney  moved  to  confirm  the  award,  and 
for  leave  to  enter  up  judgment  upon  it.  The  note  was  copied  on  the 
declaration. 

I  refused  this  motion,  1st.  Because  the  award  was  for  no  definite 
sum.  2d.  Because  the  award  did  not  refer  to  any  particular  note,  by 
such  description  as  would  connect  it,  with  certainty,  with  the  note  sued 
on,  so  as  to  authorise  the  entering  up  the  judgment  for  any  certain 
amount. 

The  written  submission  was  entitled  thus : 

"  Wm.  Cox     "j  Assump.  Note. 

vs.  >  Abbeville  District. 

Jesse  Gent.     J  In  the  Common  Pleas." 

The  plaintiff  appeals.  Because,  by  proper  reference,  the  award  may  be  made 
sufficiently  certain. 

*Wardlaw  and  Perrin,  for  the  motion,  said  that  the  award  was  sufficiently  r*o()o 
certain,   and  cited  in  support  of  this  position,  1  American  C.  L.  R.  title  '- 
Award  and  Arbit.  ;   8  Peters,  177,  Luths  vs.  WesicUn;  2  Strange,  1082  ;   2  M'Cord, 
279. 


198  COLUMBIA,    MAT,    1841.      VOL.  I.  [*303 

A  misrecital  of  an  award,  has  been  held  not  fatal,  and  on  this  point  cited  1 
Ven.  184. 

In  reply,  said  there  is  more  latitude  given  to  an  award  than  a  verdict. 

Burt,  contra,  said  that  judgments  are  taken  by  the  English  practice  in  advance 
of  the  order  for  arbitration,  and  referred  to  Watson  on  Awards,  194;  1  East  Rep. 
401. 

There  is  not  a  sufficient  description  of  the  note  sued  on  in  the  award. 

If  judgment  had  been  given  upon  this  award,  defendant  could  not  have  been 
protected  from  a  future  suit. 

Arbitrators  could  not  try  the  question  of  whose  note  it  was. 

Curia,  per  Evans,  J.  Upon  a  review  of  all  the  facts  of  this  case,  I 
concur  with  my  bretheren,  that  there  was  error  in  the  circuit  decision. 
The  award  states  the  case  which  the  arbitrators  decided,  to  be  one  in 
which  "Wm.  Cox  was  plaintiff,  and  J.  Gent,  defendant.  Connecting  this 
with  the  fact  that  the  award  signed  by  the  arbitrators  is  directed  to  the 
clerk  of  the  Court,  there  was,  I  think,  sufficient  evidence  to  identify  the 
award  with  the  case  on  the  docket.  When  a  case  is  referred  to  arbitra- 
tion, the  object  is  to  supersede,  by  the  judgment  of  the  arbitrators,  the 
verdict  of  a  jury.  It  would  follow  from  this,  that  the  award  should  be 
either  for  a  certain  sura  ascertained,  or  for  a  sum  capable  of  being  ascer- 
tained by  reference  to  some  part  of  the  record.  The  usual  form  of  a 
verdict  in  debt  or  bond  is,  "  We  find  the  writing  obligatory  within  de- 
clared on,  to  be  the  deed  of  the  defendant."  This  has  always  been 
regarded  as  sufiBcient,  without  the  specification  of  any  particular  sum  in 
the  verdict.  The  sum  is  ascertained  by  reference  to  the  declaration. 
So,  in  this  case,  the  award  is,  we  find  for  the  plaintiff  the  amount  of  the 
note.  This  is  equivalent  to  a  finding  for  the  amount  due  on  the  note 
described  in  and  copied  on  the  declaration.  This  Court  is  therefore  of 
*304l  '^P'"^^"'  t^^^^  ^^^6  presiding  judge  ought  to  have  granted  the 
-^  motion,*  unless  there  were  other  objections  to  the  confirmation  of 
the  award.  The  motion  to  reverse  the  decision  of  the  Circuit  Court,  is 
therefore  granted,  subject  to  the  right  of  the  defendant  to  impeach  the 
award  on  any  other  ground. 

The  whole  Court  concurred. 

As  to  certainty  by  reference.     Infra,  429.     An. 


WiLLi.\M  B.  Caluoun  r.s.  B.  Beynolds  et  al. 

A  note  dated  .Tanunry  the  Hh,  l^3S,  with  the  words,  "with  interest  from  the  first 
day  of  .January  last"— //eW,  that  the  time  from  which  interest  was  to  be  com- 
puted, wa.s  the  first  day  of  January,  1887. 

The  rule  of  law  is,  that  a  doubt  shall  be  solved  against  him  whose  business  it 
was  to  apeak  without  ambiguity. 

Before  Evans,  J.,  at  Abbeville,  Spring  Term,  1841. 

This  was  an  action  brought  on  a  note,  by  which  the  defendants 
promised  to  pay  "eight  hundred  dollars,  with  interest  from  the  1st 
January  last."      The   note   was  dated   8th  January,   1838.     I  was   of 


*30-4]  TRAMMELL   VS.    ROBERTS.  199 

opinion  tlie  1st  January  last,  did  not  mean  the  then  month  of  January, 
but  tlie  1st  January  183t,  and  so  directed  the  jury;  the  jury  found 
accordingly. 

The  defendants  appealed,  for  error  in  the  above  instructions. 

Curia,  y^er  Evans,  J.  If  the  note  had  been  dated  in  any  other  month 
than  January,  there  would  be  no  difficulty  in  construing  it ;  or  if  it  had 
referred  to  any  remarkable  period  of  time,  as  last  Christmas,  or  last  new 
year,  or  last  fourth  of  Jul}',  there  would  be  no  uncertainty  in  the  meaning. 
What  is  meant  by  the  "  first  January  last  ?"  Does  the  word  lasl  qualify 
Jirst  or  January'}  Is  it  the  last  first  day  of  January,  or  the  first  day 
of  last  January?  I  thought  on  the  trial  that  *last  applied  to  r:i:or\n 
January,  and  that  the  defendant  did  not  mean  the  first  of  the  then  L 
raonth  of  January,  but  tlie  first  day  of  the  preceding  January,  that  is  the 
1st  January,  183T.  In  this  opinion  my  brethren  concur,  and  especially 
for  the  reason  that  the  doubt  arises  on  the  language  of  the  defendants, 
and  the  rule  of  law  in  such  case  is,  that  the  doubt  shall  be  solved  against 
him  whose  business  it  was  to  speak  without  ambiguity. 

The  whole  concurred. 

Wardlaiv  and  Perrin,  for  the  motion.      Bu7H,  contra. 
See  Posey  vs.  Branch,  2  McM.  339.     An. 


-»4^ 


ToLiVER  Trammell  VS.  W.  H.    Roberts  et  al. 

Tlie  subscribing  witness  to  a  contract,  whether  under  seal  or  not,  must  be  produced 
to  prove  the  instrument,  if  alive  and  within  the  jurisdiction  of  the  Court.  It  is 
incompetent  to  prove  it  in  any  other  way. 

Before  Gantt,  J.,  at  Greenville,  Spring  Term,  1841. 

The  facts  of  this  case  appear  from  the  following  report  of  his  Honor  : 
W.  H.  Roberts  purchased  of  the  plaintiil"  a  horse,  and  gave  his  note 
to  secure  the  consideration  agreed  to  be  paid  for  him,  to  which  he  signed 
his  own  and  the  names  of  Dennis  and  Thomas  Westmoreland.  The 
name  of  Kevil  Roberts  was  attached  to  the  note  as  a  subscribing  witness. 
He  had  not  been  summoned  to  give  evidence  as  to  the  execution  of  the 
note  by  defendants.  It  was  stated  by  the  counsel  for  the  defendants, 
that  on  filing  the  plea  by  Thomas  Westmoreland,  an  affidavit  had  been 
made,  that  the  note  was  not  his. 

*From  the  circumstances,  as  proved,  I  thought  this  case  might  r^onR 
be  considered  an  exception  to  the  general  rule.  Thomas  West-  '- 
moreland  might  well  swear  that  he  had  not  signed  the  note,  but  it  clearly 
appeared  from  the  evidence,  that  both  the  Westmorelands  had  authorized 
W.  H.  Roberts  to  atfix  tlieir  names  as  parties  to  the  contract.  The 
plaintiff,  Trammell,  after  the  note  had  been  taken,  had  an  interview  with 
the  Westmorelands,  and  desired  to  know  of  them,  whether  Roberts  had 
been  authorized  to  sign  their  names  ;  they  replied  in  the  aifirmative,  and 
assigned  the  reason  why  they  agreed  to  it.  It  appeared  by  the  testi- 
mony, that  the  subscribing  witness  was  out  of  the  neigborhood  ;  that  he 


20O  COLUMBIA,    MAT,    1841.      VOL.  I.  [*306 

led  an  itinerant  life,  and  a  rumor  prevailed  that  he  was  out  of  the  State. 
A  witness,  however,  testified  that  he  was  a  native  of  Laurens  district, 
and  that  he  had  recently  seen  him  there. 

It  appeared  to  me,  that  had  the  witness  been  present,  he  could  not 
have  testified  to  the  facts  which  fixed  the  responsibility  of  the  two  West- 
raorelands,  more  firmly  than  what  was  established  by  the  testimony 
offered. 

Their  liability  or  not  to  the  payment  of  the  note  sued  on,  depended 
upon  a  fact  aliunde — the  execution  ot  the  note. 

I  therefore  overruled  the  motion  for  a  nonsuit,  on  account  of  the  failure 
of  the  plaintiff  in  not  having  the  subscribing  witness  in  Court ,  and 
deeming  the  testimony  offered  sufficient  to  fix  the  liability  of  Thomas 
Westmoreland,  I  signified  as  much  to  the  jury  in  my  charge,  who  found 
accordingly. 

Tiie  defendants  move  the  Appeal  Court  for  a  nonsuit  in  this  case,  and 
for  a  new  trial,  on  the  ground  : 

That  his  Honor  charged  the  jury  that  the  plaintiff  had  proved  the  note,  the 
subject  of  this  suit,  without  the  production  of  the  subscribing  witness,  or 
accounting  for  him,  by  proving  the  handwriting  of  the  parties  and  their 
declarations,  notwithstanding  the  defendant,  on  filing  his  plea,  also  filed  his 
aiSdavit  agreeably  to  the  Act  of  1802,  that  the  note  was  not  his,  and  it  appear- 
ing that  the  witness  was  residing  within  twenty-two  miles  of  Greenville 
Court-house. 

CJtoice,  for  the  motion.  The  question  for  the  Court  is,  whether  the  party,  under 
the  Act  of  1802,  on  filing  his  plea,  files  also  his  aiiidavit,  denying  the  signature  to 
^of^--!  the  note,  the  *plaintiff  is  not  bo\ind  to  offer  or  produce  the  subscribing  wit- 
'  -'  ness  to  the  note,  or  show  that  he  has  used  due  diligence  in  endeavoring  to 
procure  him.  2  Bay,  506  ;  1  McCord,  391 ;  also,  Plunket  vs.  Bowman,  2  McC.  138  ; 
3  McC.  219. 

The  subscribing  witness  to  a  bond  or  note,  must  be  produced,  if  alive  or  within 
the  State.     1  Starkie  on  Ev.  236. 

Totcnes,  contra.  It  was  not  necessary,  imder  the  circumstances,  to  prove  the 
note  by  the  subscribing  witness — taking  the  admissions  of  the  defendant. 

The  admission  of  a  party  is  sufficient  to  bind  him  in  all  cases,  and  is  the  highest 
evidence. 

If  the  witness  to  the  note  had  been  present,  he  could  only  prove  what  plaintiff 
admitted.     2  Johnson,  451 ;  Hall  vs.  Phelps. 

Curia,  per  Richardson,  J.  The  verdict  is,  perhaps  right  according 
to  the  evidence  before  the  jury,  and  would  have  been  satisfactory,  but  for 
the  strict  rules  of  law.  The  question  is,  whether  the  evidence  received 
to  prove  the  signatures  to  the  note,  was  competent  in  law,  when  Kevll 
Huberts,  the  subscrilnng  witness  was  within  the  reach  of  the  Court,  and 
might  have  been  brought  to  testify,  in  person,  to  the  contract  he 
witnessed.  In  such  a  case,  and  at  common  law,  the  subscribing  witness 
must  have  testified  in  person,  and  in  case  he  were  beyond  the  reach  of  the 
Court,  then  otiier  witnesses,  by  proving  his  handwriting,  and  the 
signatures  of  the  makers  of  the  note  would  furnish  legal,  though  secon- 
dary evidence  of  the  same  facts.  (See  1  Starkie,  126-80,  and  the  cases 
cited.)  IJut  docs  the  Act  of  1802,  (5  Stat,  at  large,  p.  435,)  alter  this 
rule  of  the  common  law,  in  such  a  case  ? 

The  Act  declares  that  "  tiie  absence  of  any  witness  to  a  bond  or  note, 
shall  not  be  deemed  a  good  cause  for  postponing  a  trial,"  &c.     "  But 


*307]  ADAMS   VS.    CRIMAGER.  201 

that  the  siguature  to  such  bond,  or  note,  may  be  proved  by  other  testi- 
mony, unless  the  defendant,  at  the  time  of  filing  his  or  her  i)lea  should 
swear,"  &c.,  "that  the  signature  to  the  bond  or  note,  is  not  his  orher's." 

In  the  case  before  us,  one  of  the  defendants  had,  in  fact,  so  sworn,  and 
that  being  done,  it  follows  that  the  case  was  taken  out  of  the  provisions 
of  the  Act,  and  stood  at  common  law  as  if  no  such  Act  bad  been  passed. 
We  must  then  judge  the  case  by  the  common  law  rules  already  noticed. 
But  *it  may  be  satisfactory  to  observe  that  the  object  of  the  rule,  i-^qqo 
that  competent  or  the  best  evidence  shall  be  adduced,  is  not  '- 
merely  that  conviction  or  belief  of  the  jury,  upon  the  facts  of  the  case, 
shall  be  produced,  but  that  such  belief  shall  be  produced  by  legal  evi- 
dence ;  and  the  decision  of  the  Court  turns  upon  that  distinction. 

Why  is  it,  that  without  competent  evidence,  no  case  can  be  heard,  and 
nonsuits  are  ordered  ?  It  is  lest  belief  should  be  impressed  upon  the 
jury  by  illegal  evidence,  and  verdicts  be  given  thi'ough  partiality,  preju 
dice,  or  credulity,  which  are  human  weaknesses  ;  and  the  law  being  unable 
to  control  them,  yet  limit  their  influence  by  known  rules  or  measures  of 
evidence,  which  the  Judge  is  to  apply  according  to  the  legal  character  of 
the  evidence  offered 

It  is  plain,  then,  that  the  rule  in  question  has  a  sound  policy,  similar 
to  that  of  the  Act  requiring  three  witnesses  to  the  last  will,  or  to  the  rule 
of  the  civil  law,  which  requires  two  witnesses  to  a  fact.  There  is  safety 
in  such  guards,  against  partial  decisions,  as  well  as  frauds,  and  the  uni- 
formity and  coherence  of  laws  depend  greatly  upon  the  adherence  to  its 
rules  of  evidence.  However  probable  it  may  therefore  be,  that  the 
evidence  of  Kevil  Roberts  will  not  alter  the  verdict,  yet,  the  reasons  of 
so  established  a  rule  require  that  there  should  be  a  new  trial  in  order 
that  the  verdict  may  follow  legal  evidence. 

O'Neall,  Evans  and  Butler,  JJ.,  concurrecl. 

See  11  Rich.  318,  and  cases  there  cited.     An. 


*JoHN  Adams  vs.  F.    Crimager.  [*309 

Where  there  are  several  executions  in  the  sheriff's  office  against  the  same  defendant, 
of  different  dates,  the  defendant  may,  on  paying  money  to  the  sheriff,  direct  its 
application,  and  the  sheriff,  on  rule,  will  be  protected. 

A  receipt  from  the  sheriff,  when  money  has  been  paid  on  a  junior  execution,  is  a 
discharge  to  the  defendant  pro  tanto  on  the  execution. 

Before  Earle,  J.,  at  Lancaster,  Fall  Term,  1840. 

The  plaintiff's  execution  was  lodged  IGth  March,  1840.  An  execution 
at  the  suit  of  Weed,  Benedict  &  Co.,  was  lodged  the  13th  of  April,  1840, 
against  the  same  defendant,  who  paid  to  the  sheriff,  on  iGth  July, 
$178.14,  wdiich  he  directed  to  be  applied  to  the  payment  of  the  last 
mentioned  execution,  and  took  a  receipt  from  the  sheriff  entitled  of  that 
case. 

This  was  a  rule  on  the  sheriff,  who  has  the  money  yet  in  his  hands,  at 


202  COLUMBIA,   MAY,    1841.      YOL.  I.  [*309 

the  instance  of  Adams,  to  show  cause  why  the  money  sliould  not  be  paid 
over  to  him,  as  the  oldest  execution  creditor. 

As  the  money  did  not  arise  from  the  sale  of  property,  the  lien  of  the 
execution  did  not  attach  upon  it.  A  payment  of  the  money  by  the 
defendant,  to  the  plaintiffs,  Weed,  Benedict  &  Co.,  themselves  in  person, 
would  have  been  protected  as  a  valid  payment.  It  would  have  been  a 
mere  preference  of  one  creditor  to  another,  which,  under  the  circum- 
stances, the  defendant  had  a  right  to  make.  I  think,  on  principle,  the 
pavment  of  the  money  to  the  sheriff,  makes  no  difference,  as  he  gave 
directions  how  it  was  to  be  applied  ;  which  directions  the  sheriff  has  con- 
sented to  obey,  by  giving  a  receipt  accordingly.  The  sheriff,  on  a,fi.  fa. 
could  not  levy  on  the  money  in  the  pocket  of  the  defendant,  nor  compel 
him  to  pay  it  to  the  execution  of  Adams.  The  sheriff  had  two  exe- 
cutions, and  the  defendant  selected  which  he  would  pay  ;  it  is  the 
common  case  of  one  owing  several  debts,  and  making  a  payment, 
directing  the  application  of  the  money.  The  sheriff's  receipt  is  at  least  a 
discharge  of  the  defeudantpro  tanto  on  the  execution  of  Weed,  Benedict 
&Co. 

I  dismissed  the  rule,  and  the  plaintiff  appeals,  ou  the  ground  : 

*^10l       *Tbat  the  Court  erred  in  ruling  that  "where  there  are  several  ex- 

J  ecutions  in  the  sheriff's  office,  against  the  same  defendant,  of  different 

dates,  the  defendant  may,  on  paying  money  to  the  sheriff,  direct  its  application; 

and  that  the  sheriff  is  not  bound  to  apply  money,  so  paid,  to  the  oldest  execution." 

Clinton  and  Ilanna,  for  the  motion,  contended  that  money  is  subject  to  levy  under 
execution,  and  it  was  the  business  of  the  sheriff  to  levy,  iu  this  case,  in  favor  of 
the  oldest  execution. 

Cited  1  McCord,  395  ;  Dalton,  145.  The  execution  goes  as  well  against  money 
as  other  property.  1  Cranch,  11 7,  to  show  that  money  may  be  levied  or  under 
execution.  12  .Johns.  220 ;  Id.  395  ;  2  N.  &  McC.  341  ;  1  Bail.  39  ;  Means  vs.  Vance, 
2  Uill,  40t].  In  the  case  at  bar,  the  sheriff  received  the  money  as  sheriff.  4  McC. 
8 ;  P.  L.  379.     The  oldest  execution  must  be  satisfied. 

Wright  and  McMullin,  contra,  (a) 

Curia,  per  O'Neall,  J.  We  concur  in  the  opinion  of  the  Judge 
below,  and  adopt  the  reasoning  by  which  he  sustained  it.  It  is,  how- 
ever, necessary  to  add,  that  in  doing  so,  we  do  not  ciuestiou  the  authority 
of  Sumviers  vs.  Caldwell,  (2  N.  &  McC,  341,)  nor  of  Means  vs.  Vance, 
(1  Bail.  40.)  Generally,  money  is  the  subject  of  levy.  But  it  cannot 
be  said,  that  it  is  also  subject  to  the  lien  of  an  execution.  It  has  no  ear- 
mark, by  which  it  can  be  traced,  and  as  the  circulating  medium  of  the 
country,  it  would  not  do  to  arrest  its  transfer  from  hand  to  hand  by 
liens  of  which  the  receiver  would  be  generally  ignorant,  and  of  which  he 
would  have  no  means  of  information.  The  most  which  can  be  said  with 
certainty,  as  to  the  liability  of  money  to  levy  is,  that  when  it  is  within 
the  power  of  the  sheriff,  as  the  property  of  the  defendant  in  execution,  it 
may  be  seized.  But  when  the  debtor  delivers  it  to  the  sheriff,  for  one  of 
his  creditors,  it  comes  into  his  hands  and  power,  not  as  the  property  of 
the  debtor,  l)ut  as  the  property  of  the  creditor.  It  is  paid  to  him  as  the 
the  agent  of  the  creditor,  and  extinguishes  so  much  of  the  execution  on 

(a)  The  f:<)urt  refused  to  hear  argument  from  the  counsel  against  the  motion, 
being  satisfied  with  the  opinion  of  tlio  Judge  below.  REroRXER. 


*310]        LUCAS  vs.    SANDERS  &  m'aLILLY.  203 

which  it  is  paid.  There  is  then  *nothing  to  bo  levied  l)y  a  senior  [-;^oi  i 
execution.  In  Means  vs.  Vance,  (1  Bail.  40,)  which  was  a  rule  '- 
against  the  sheriff,  (as  this  is,)  to  show  cause  why  he  did  not  apply  the 
money  collected  for  the  defendant,  on  an  execution,  to  the  plaintiff's  exe- 
cution, Judge  Nott  said,  "If,  therefore,  it  had  appeared  that  any  other 
person  had  a  legal,  or  even  an  equitable  claim  to  the  money,  the  Court 
ought  not  to  have  interfered  in  this  way."  This  dictum  would  be  enough 
for  this  case.  For  here,  Weed,  Benedict  &  Co.  claim  the  money.  It 
was  paid  to  the  sheriff  for  them :  and  hence,  therefore,  on  rule,  the  Court 
would  not  deprive  them  of  any  right,  legal  or  equitable,  which  they  may 
have  to  it.  Being  paid  to  the  sheriff,  for  them,  he  must  pay  it  to  them, 
and  then  if  the  plaintiff  chooses,  he  may  try  their  right  to  it  by  an  action 
against  them. 

The  motion  is  dismissed. 

The  whole  court  concurred. 

See  Lynch  vs.  Ilanahan,  9  Rich.  191 ;    Maddox  vs.  Williamson,  1   Strob.  24,  and 
cases  there  cited ;  4  Rich.  130  ;  2  Rich.  528  ;  Cheves,  113 ;  2  McM.  328.  An. 


Richard  Lucas  vs.  Sanders  &  McAlilly. 

One  co-partner  cannot  bind  another,  by  an  obligation  under  seal,  without  express 

authority  given  or  inferable  from  their  course  of  dealing. 
Neither  can  a  recovery  be  had  against  one,  upon  a  paper  purporting  to  have  been 

made  jointly,  as  upon  a  joint  and  several  obligation. 

Before  Butler,  J,,  at  Chester,  Spring  Term,  1841. 

This  was  an  action  of  debt,  on  the  following  paper: 

"  One  day  after  date,  we  promise  to  pay  Richard  Lucas,  or  his  order, 
three  hundred  dollars,  for  value  received.  Witness  our  hands  and  seals, 
May  11th,  1836. 

"  Sanders  &  Egger,     [l.  s.] 
George  McAlilly,    [l.  s.]" 

*It  was  proved  that  tlie  signatures  were  made  by  Egger,  in  the  r^qio 
name  of  Sanders  &  Egger,  at  the  time  they  were  in  co-partner-  L 
ship,  and  by  McAlilly.  On  the  night  that  the  note  was  delivered  to 
payee,  Egger  left  the  State,  and  this  is  an  action  against  E.  Sanders  & 
George  McAlilly.  The  declaration  alleges  that  the  note  was  made  by 
Sanders  &  McAlilly,  (Egger  being  out  of  the  State.)  The  evidence 
was  that  Sanders  did  not  sign  the  note;  and  the  effort  to  show  that  he 
had  authorized  Egger  to  sign  it  for  hira,  and  for  the  firm,  under  seal, 
entirely  failed,  and  the  question  made  was,  whether  the  plaintiff  could 
recover  against  McAlilly  alone.     I  held  that  he  could  not. 

The  plaintiff  moves  to  set  aside  the  nonsuit,  and  for  a  new  trial  : 
1.  Because  his  Honor,  the  presiding  Judge,  decided  that  the  plaintiff  could 
not  recover  in  this  action,  the  suit  being  brought  on  a  joint  sealed  note, 
executed  by  Egger,  in  the  name  of  the  firm  of  Sanders  and  Egger,  and  by 
George  McAlilly,  Egger  not  sued,  (he  being  without  the  limits  of  the  State.) 


204  COLUMBIA,    MAY,    1841.      VOL.  I.  [*312 

2.  Because  the  Court  decided  that  the  plaintiff  could  not  recover  iu  this  suit 
against  Georjje  McAlilly. 

3.  Because  the  decision  of  the  Court  was  contrary  to  law  and  the  evidence 
in  this  case. 

M.  Williams,  for  the  motion.  This  case  was  brought  under  the  Act  allowing 
joint  obligors  to  be  sued,  when  one  of  the  parties  is  out  of  the  State.  Cited 
Fleming  vs.  Dunbar,  2  Hill,  532. 

One  co-partner  can  bind  the  firm,  where  it  is  shown  that  the  profits  arising  from 
the  contract  went  into  the  co-x^artnership.  Lockhart  vs.  Bell,  2  Hill's  Rej).  422 ; 
1  Saunders'  Plead. 

Grejg  and  McAlilly,  contra,  offered  no  argument. 

Curia,  per  Butler,  J.  The  evidence  in  this  case  was  entirely  satis- 
factory, that  Sanders  had  never  given  Egger  express  authority  to  subject 
bim  to  liability  by  an  obligation  under  seal,  and  without  such  authority, 
either  expressly  given,  or  inferable  from  their  course  of  dealing,  Sanders 
could  not  be  made  liable  on  such  a  paper.  Whether  the  paper  in  ques- 
5^qiqn  tion*  could  be  regarded  as  the  joint  obligation  of  Egger  &  McAlilly, 
-'  upon  which  one  might  be  liable,  the  other  being  out  of  the  State, 
is  a  question  upon  which  I  give  no  opinion.  The  case,  as  it  now  stands, 
is  a  joint  action  against  Sanders  &  McAlilly.  It  is  alleged  that  they 
made  the  note,  when  in  fact,  and  in  law,  they  did  not.  The  position 
taken  is,  that  in  a  joint  action  on  a  paper  purporting  to  have  been  made 
jointly,  a  recovery  may  be  had  against  one,  as  upon  a  several  obligation. 
This  is  opposed  to  general  authority,  and  express  adjudications  of  the 
State.  See  Ives  vs.  Picket,  (2  McC.  271;)  Lockhart  vs.  Bell,  (2 
Hill,  422.) 

Motion  to  reverse  Circuit  decision  dismissed. 

The  whole  Court  concurred. 

See  10  Rich.,  151.     An.  ' 


J.  R.  McKain  vs.  Jonathan  Miller. 

Any  h'tters,  sucli  as  "  L.  S."  or  a  circumflex  scroll,  made  by  a  party  in  connection 
with  tlie  words  ^^  sealed,''''  or  "witness  my  band  and  seal,"  or  proved  by  evidence 
altutide  to  have  been  intended  as  a  seal,  will  constitute  a  valid  seal. 

The  intention  of  a  party,  where  the  letters  "L.  S."  are  annexed  to  liis  signature,  is 
properly  a  question  of  fact  for  a  jury  to  decide. 

Before  Earle,  J.,  at  Sumter,  Spring  Term,  1841. 

Thf  jdaintiff  declared  in  assumpsit  on  a  promissory  note,  and  proved 
on  the  trial  an  instrument  in  the  following  words : 

"$212  O.'i.  Camden,  March  Gth,  1840. 

Six  diiys  :iflcr  dntc,  I  i)roinise  to  pay  James  R..  McKain  or  bearer, 
two  huiidrcfl  and  twelve  doihirs  and  five  cents,  for  value  received,  with 
interest  from  the  1st  January,  1840,  as  witness  my  hand  and  seal. 

J.  MILLER,     [l.  s.]" 


'314] 


m'kain  v8.  miller.  205 


*'Mn  *Tlie  defendant's  counsel,  on  tlie  production  of  the  paper, 
-'  moved  fur  a  nonsuit,  on  the  ground  that  it  was  a  sealed  instru- 
ment, and  therefore  assumpsit  could  not  lie.  The  instrument  was  a 
printed  form,  except  the  sums,  dates  and  maker's  name.  The  letters 
L.  S.  were  printed  capitals,  and  there  was  no  scrawl  of  any  kind  to 
denote  a  seal,  and  no  parol  proof  of  intention.  "  Witness  my  hand  and 
seal,"  was  also  printed.  I  did  not  consider  it  as  a  sealed  instrument, 
and  overruled  the  motion.  The  counsel  then  made  the  same  question  to 
the  jury,  and  it  was  submitted  to  them  by  the  Court,  with  ample  instruc- 
tions, to  say  whether  in  fact  the  defendant  intended,  and  the  plaintiff 
accepted  it  as  a  sealed  instrument,  I  explained  the  nature  and  office  of 
a  seal,  and  the  materinl  distinctions  between  sealed  and  unsealed  instru- 
ments, especially  in  regard  to  the  statute  of  limitations,  and  the  order  of 
paying  debts  against  estates.  I  instructed  them  that  less  strictness  was 
observed  here  on  this  subject  than  in  England,  and  some  other  States ; 
that  any  letters,  as  L  S.,  or  a  scrawl,  made  by  the  party,  in  connection 
with  the  words  "sealed,"  or  "witness  my  hand  and  seal,"  or  proved  by 
evidence  aliunde  to  have  been  intended  as  a  seal,  would  constitute  a 
valid  seal.  The  ])rinted  letters  L.  S.  only  denoted  where  the  seal  should 
be,  and  were  intended  to  represent  a  seal,  were  usually  surrounded  by 
a  scrawl  of  the  party,  to  denote  a  seal.  In  the  absence  of  any  thing 
done  or  written  by  the  defendant  here,  to  manifest  an  intention  to  adopt 
these  letters  as  a  seal,  I  thought  the  paper  ought  not  to  be  regarded  as 
a  sealed  instrument.  The  jury  were  of  a  different  opinion  ;  and,  as  they 
were  instructed  to  do  in  that  event,  they  found  a  verdict  for  the  defendant, 
assumpsit  not  being  the  proper  action. 

The  plaintiff  appeals  : 

1.  Because  the  printed  letters  L.  S.  at  the  end  of  defendant's  name,  does  not 
constitute  a  sealed  note,  and  is  no  seal. 

2.  Because,  upon  the  proof  made  in  the  case,  it  was  not  the  seal  of  the 
defendant. 

Curia,  per  Richardson,  J.  Whether  the  letters  "L.  S."  annexed  to 
the  signature  of  Jonathan  Miller,  had  been  adopted  by  hiin  for  his  seal, 
was  a  question  of  fact  properly  submitted  to  the  decision  of  the  jury. 
ReJph  (t  Co.  vs.  Gist,  (4  McCord,  *267.)  And  the  jury  having  r:^qi- 
decided  that  such  letters  constituted  his  seal,  the  question  for  the  •- 
Court  to  decide  is,  whether  those  two  letters,  not  written,  but  in  print, 
and  standing  without  a  circumflex,  scrawl,  or  other  visible  mark  of  the 
pen  of  Jonathan  Miller,  can,  in  law,  constitute  his  seal.  It  is  not  unfre- 
quent,  that  such  letters,  when  circumscribed  by  a  scrawl,  either  in  print 
or  handwriting,  constitute,  in  practice,  a  seal.  And  we  cannot  lay  it 
down  as  a  rule  of  law,  that  the  letters  alone,  if  used  for  such  a  purpose, 
may  not  be  a  valid  seal.  Any  stamp,  ini})ression,  or  mark,  made  or 
adopted  by  the  signer  to  a  written  contract,  and  annexed  to  his  signature, 
as  and  for  his  seal,  would  seem  to  answer  the  purpose  of  sealing,  in 
order  to  render  such  written  contract  a  sealed  instrument  or  deed  in  law. 
McKenzie  vs.  loor  and  Mathncs,  MS.  Dec.  1833;  Rice's  Dig.  212; 
4  McCord,  239.  In  such  a  case,  the  question  is  upon  tlie  intention  and 
will  of  the  signer.  Did  he  or  not  intend  to  subscribe  and  deliver  the 
contract  as  his  deed,  and  not  as  a  mere  parol  or  written  instrument? 


206  COLUMBIA,    MAY,    1841.       VOL.  I.  [*315 

And  did  he  or  not,  actually  adopt  the  letters,  as  and  for  his  mark  and 
exhibition  of  a  seal  ?  In  a  case  like  the  one  before  the  Court,  where  the 
signer  affixes  his  name  to  the  words,  "  as  witness  ray  hand  and  seal," 
there  is  little  room  to  question  his  intention  to  seal  the  contract.  For  I 
can  lay  no  stress  upon  its  Ijeing  printed.  And  wherever  the  intention  to 
seal  is"  so  plain,  the  jury  are  warranted  in  inferring  that  the  signer  fulfilled 
his  intention,  practically,  by  adopting  the  printed  L.  S.  as  his  promised 
seal.  And  this  authenticates  the  contract,  and  renders  it  a  deed  in  law, 
upon  delivery.  See  Mitchell  vs.  Parkham  and  Davis,  (Harper,  3.) 
The  motion  is  therefore  dismissed. 

The  whole  Court  concurred. 

J.  M.  De  Saussure,  for  the  motion.     C.  W.  Miller,  contra. 

Note.     This  case  was  submitted  by  both  of  the  counsel  without  argument. 

Reportek. 
See  O'Cain  vs.  0' Cain,  1  Strob.,  402.      Giles  et  at.  vs.  Maulden,  7  Rich.,  11  ;   1 
Bur.,  308  ;  11  Rich.,  131.     An. 


*31G]  *  Pitman  &  Day  vs.  William  Clarke. 

Hall  &  Co.       vs.  The  Same. 

A  Sheriff  cannot  be  relieved  from  an  attachment  issued  against  him,  nor  can  he  have 
it  dissolved,  unless  he  can  show  that  he  has  used  all  the  means  in  his  power, 
under  the  execution  against  the  defendant,  to  obviate  and  repair  the  conse- 
quences of  his  former  default ;  and  that  the  loss  to  be  suffered,  did  not  arise 
from  his  negligence,  but  from  the  absolute  insolvency  of  the  defendant.     ■ 

Before  Butler,  J.,  at  Lancaster,  Spring  Terra,  1841. 

This  was  a  motion  to  dissolve  certain  attachments,  which  had  been 
issued  at  the  instance  of  the  plaintiffs,  against  Leroy  Secrest,  late  Sheriff 
of  Lancaster  District,  as  for  a  contempt,  in  not  collecting  and  paying 
over  the  money  on  certain  executions  of  the  plaintiffs,  against  the 
defendant ;  and  also,  for  not  returning  the  executions  according  to  law. 

KULE  AGAINST  PLAINTIFFS. 

"An  attachment  having  issued  in  the  above  cases,  against  Leroy  Secrest, 
former  slieriff,  for  not  colloctiiig  and  paying  over  the  money,  and  returning  the 
executions,  in  the  above  cas'es ;  and  the  said  Leroy,  since  suing  out  the  attach- 
ment.s,  having  sold  all  the  property  of  defendant  on  the  executions,  and  paid  over 
the  money,  and  returned  the  executions :  on  motion  of  Clinton,  attorney  for  Leroy 
Secrest,  it  is  ordered,  that  the  j>laintiffs  in  tlie  executions  show  cause,  during  the 
Hitting  of  tliis  Court,  why  the  attachments  should  not  be  dissolved ;  and  that 
service  of  tliis  rule  be  made  on  the  attorney  on  record." 

Tlie  following  cause  was  shown  to  the  above  rule  : 

Thonirm  ./.  Wriijhl,  the  attorney  for  plaintiffs,  in  obedience  to  the  rule  served 
upon  him,  rerpiiring  the  i)laintiffs  to  show  cause  why  the  attachments  sued  out  in 
thpir  favor  against  Leroy  Secrest,  late  shc^riff,  should  not  be  dissolved,  respectfully 
submits  for  tliem  the  folbiwiiig  cause,  on  oath. 

The  executions  in  favor  of  the  plaintiffs  against  Clarke,  were  lodged  in  the 
sheriff's  office  on  the  1.0th  April,  1839.  By  law,  it  was  the  duty  of  the  sheriff  to 
make  the  money  and  return  the  executions  at  the  next  term  of  the   Court 


^316] 


PITMAN    ET    AL.    VS.    CLAEKE.  207 


succeeding  *their  lodgment,  to  wit:  at  Fall  Term,  1839.  All  this,  however,  r^oyi 
the  sheritf  entirely  failed  to  do,  and  during  all  this  time,  the  defendant  in  '- 
the  executions  was  continually  engaged  in  selling  and  disposing  of  his  stock  of 
goods  and  merchandize,  which,  with  a  house  and  lot,  constituted  almost  the  only 
means  out  of  which  these  debts  could  be  levied.  At  Fall  Term,  1839,  a  rule  was 
taken  out  against  the  sheriff,  to  show  cause  why  he  had  not  made  the  money, 
which,  on  the  9th  November,  1839,  was  made  absolute  against  him,  and  it  was 
ordered  by  the  Court  that  he  should  x>ay  the  plaiutifis  the  debts,  on  or  before  the 
first  Monday  in  December,  1839,  or  that  an  attachment  should  issue  against  him 
for  a  contempt. 

This  time  being  allowed  to  the  sheriff  expressly  to  enable  him  to  remedy  his 
past  default. 

But  this  order  of  the  Court  was  likewise  wholly  disregarded  by  the  sheriff,  who 
permitted  the  defendant,  Clarke,  to  continue,  as  before,  to  sell  and  dispose  of  his 
stock  of  goods,  and  conseqiiently,  to  diminish  the  available  means  out  of  wliich 
it  was  possible  for  him,  the  sherifl',  to  make  the  money. 

The  house  and  lot  of  defendant,  Clarke,  was  levied  on,  it  appears,  the  15th 
November,  1839,  was  not  sold  until  the  3d  of  August,  1840,  about  nine  months 
after  he  was  ordered  to  pay  the  money.  On  the  same  day,  the  3d  August,  as 
appears  from  the  sheriff's  sale  book,  the  stock  of  goods  and  merchandise  of  the 
defendant  was  levied  on,  but  not  sold  until  the  3d  November  and  0th  of  December, 
1840,  more  than  twelve  months  after  the  order  of  the  Court  to  pay  the  money. 
During  a  great  portion  of  this  time,  as  has  already  been  stated,  Clarke,  the 
defendant  in  the  executions,  was  engaged  in  selling  off  his  stock,  and  thus  wasting 
the  means  out  of  which  the  plaintiffs  were  entitled  to  have  their  debts  satisfied, 
and  out  of  which  it  was  the  imperious  duty  of  the  sheriff  to  have  made  the 
money ;  and  during  the  same  time  deponent  was  urging  liim  to  do  so.  Besides, 
this  deponent  knows  that  the  sheriff  himself,  after  his  levy  on  the  goods,  sold 
many  of  them  at  private  sale  ;  deponent,  himself,  purchased  some  of  the  goods 
thus,  and  knows  of  others  having  so  ])urchased.  This  deponent  further  states,  as 
a  fact,  that  when  the  goods  were  ultimately  sold,  a  large  portion  of  them,  as  the 
sales  book  shows,  were  knocked  down  to  John  C.  Secrest,  a  minor  son  of  the 
sheriff,  but  were  in  fact  bid  off  at  the  sale  by  the  sheriff  himself,  in  *clear  r*3]^g 
violation  of  law.  This  deponent,  too,  believes  that  the  sheriff  has  not  yet 
sold  all  defendant's  property  which  was  bound  by  these  executions,  to  wit,  a 
horse,  and,  it  may  be,  something  else.  The  deponent  further  states,  that  he  is 
informed,  and  believes,  and  is  ready  to  make  appear,  by  proof,  that  long  before 
the  sale  of  defendant's  goods,  as  set  forth  in  the  sale  book,  the  sheriff  entered 
into  a  i^rivate  agreement  with  Clarke,  for  the  purchase  of  the  stock  of  goods 
which  were  bound  by  the  executions,  and  that  according  to  the  estimate  placed 
on  them,  in  that  contract,  their  value  amounted  to  $1600  or  $1700.  That  it  was 
agreed  between  them,  that  to  confirm  this  sale,  the  goods  should  be  offered  by  the 
sheriff,  and  bid  off  by  some  agent  for  him,  he  to  be  responsible  to  Clarke  or 
Clarke's  creditors  for  the  price  agreed  on  as  aforesaid.  That  in  pursuance  of  this 
arrangement,  the  goods  were  put  up  in  bulk,  and  bid  off  by  the  sheriff,  or  some 
one  for  him,  in  the  name  of  his  minor  son  John  C.  Secrest,  and  that  subsequent 
to  this  sale,  he  took  possession  of  the  store,  and  sold  many  of  the  goods  at 
private  sale ;  all  which  actings  and  doings  were  clearly  and  manifestly  illegal  and 
void.  This  deponent  is  informed,  also,  tliat  the  house  and  lot  would  have  brought 
a  much  better  price,  if  it  bad  been  sold  on  a  previous  sale  day,  on  which  it  had 
been  advertised;  but  the  sale  was  capriciously,  or  from  some  cause  known  to 
himself,  put  off  by  the  sheriff,  to  a  time  when  the  individual  who  wished  to 
purchase  was  not  present.  The  goods,  too,  when  sold,  were  knocked  off  in  great 
haste,  and  hence,  necessarily,  at  a  reduced  price.  Certain  this  deponent  is,  that 
the  plaintiffs  in  the  executions  against  Clarke,  have  been  greatly  delayed  and 
injured  by  the  sheriff's  course  in  this  matter. 

Neither  have  the  proceeds  of  the  sale  of  the  goods  been  paid  over,  unless 
within  a  few  days  a  part  may  have  been  paid  to  the  coroner.  Neither  has  the 
sheriff  to  this  day  returned  the  executions  according  to  law ;  nor  can  this 
deponent  procure  them  either  from  the  clerk's  or  sheriff''s  office.  This  deponent 
now  submits,  that  in  the  order  making  the  rule  absolute,  time  was  allowed  the 


208  COLUMBIA,   MAT,    1841.      VOL.  L  [*318 

sheriff  to  make  the  money  out  of  Clarke's  estate,  and  if,  within  that  time,  lie  had 
sold  the  whole  of  defendant's  estate,  he  might  have  dissolved  the  attachment, 
nor  would  he  have  been  opposed  in  that  motion ;  but,  as  he  flagrantly  neglected 
^„, „,  his  duty,  and  disobeyed  the  *order  of  the  Court,  and  as  he  has  permitted 
■^  Clarke's  estate  to  be  wasted,  and  as  it  is  clear  that  the  plaintiffs  have  been 
delayed,  hindered,  injured,  and  in  all  probability  lost  their  debts,  by  his 
net^lio-ence  and  malfeasance,  he  is  not  now  entitled  to  have  the  attachment 
dissolved.  All  which  is  respectfully  submitted. 
Sworn  to  before  me,  this  yth  April,  1841. 

S.  BECKHAM,  Clerk. 

The  following  endorsements  and  returns  are  made  on  the  executions  of  Leroy 
Secrest,  sheriff,  to  wit :  on  the  execution  of  Pitman  &  Day,  as  follows  :  ' '  Entered 
in  my  office,  15th  April,  1839,  L.  Secrest,  S.  L.  D."  "I  have  levied  on  the  house 
and  lot,  whereon  the  defendant  lives,  lying  on  Gay  street.  White  street  and  B.  F. 
Sadler's  lot,  and  known  in  the  plan  of  the  town  by  Nos.  8  and  41,  as  the  property 
of  defendant.  15  Nov.,  1839.  L.  Secrest,  S.  L.  D."  (Debt  in  part,  $85.)  "I 
have  levied  on  the  goods,  wares,  and  merchandize,  in  defendant's  store,  as  the 
property  of  defendant.  3  August,  184U.  L.  Secrest,  S.  L.  D."  "2d  Nov.  and 
tjth  Dec,  1840.  Goods  sold  for  $851  85.  An  account  of  sales  attached  to  this 
execution  :"  "I  can  find  no  more  of  the  goods  and  chattels,  lands  and  tenements 
of  defendant,  of  which  to  make  any  other  or  more  money.  L.  Secrest,  S.  L.  D." 
Paid  to  the  attorney,  G.  W.  Williams,  in  the  case  of  J,  W.  Kerrhy  vs.  W.  Clarke, 
before  sale  of  lands  and  goods,  $350  46,  of  debt  and  attorney's  cost,  for  which  I 
detain  out  of  the  sales  of  the  goods.  Sales  of  the  goods,  -  -  -  $851  85 
Paid  on  Kerrby's  case,  to  G.  W.  Williams,  -        -        -  $350  46 

"    Attorney's  cost,  in  the  above  case,       -         -         -         -  11  .00 

"    Sherifl's  cost  in  the  above  case,  ...        -  13  50 

"         "  "    in  Hall  &  Co's  case,        -         -         -         -  16  00 

"         "  "    in  Pitman  &  Day's  case,  ...  14  50 — 405  00 

$446  39 

The  following  return  is  endorsed  on  the  execution  of  Hall  &  Co.,  to  wit :  "En- 
tered in  my  office  15  April,  1839,  L.  Secrest,  S.  L.  D.  I  have  levied  on  the  house 
and  lot  whereon  defendant  lives,  on  Main  street,  Gay  street.  White  street,  and  B. 
F.  Sadler's  lot,  and  known  in  the  plan  of  the  town  by  Nos.  8  and  41,  as  the  pro- 
perty of  defendant,  15  Nov.,  1839.  L.  Secrest,  S.  L.  D."  (Debt  in  part,  $69.)  Bid 
*^2m  ^^  ^'^  Caleb  Clarke,  *at  $700,  3d  August,  1840.  Bid  paid,  and  titles  made,  3d 
-'  Aug.,  1840.  I  have  levied  on  the  goods,  wares,  and  merchandize  in  defend- 
ant's store,  as  defendant's  property.  3  Aug.  1840.  Leroy  Secrest,  S.  L.  D.  2d 
Nov.  and  6  Dec,  1840,  goods  sold  for  $851  85  :  an  account  of  sales  attached  to 
this  execution.  I  can  find  no  more  of  the  goods  and  chattels,  lands  and  tene- 
ments of  this  defendant,  of  which  to  make  any  other  or  more  money.  L.  Secrest, 
S.  L.  D.  Sales  of  goods — how  disposed  of — see  the  case  of  Pitman  &  Day  against 
this  defendant.  5  Aug.,  1840,  paid  to  F.  J.  Wright,  plaintiffs'  attorney,  $1000, 
of  sales  of  land.     L.  Secrest,  S.  L.  D. 

Eut'd,  4  March,  1841.  H.  HANCOCK,  S.  L.  D. 

The  sherill",  on  his  part,  upon  taking  up  the  rule,  submitted  the  following 
affidavit : 

Personally  appeared  B.  F.  Sadler  and  J.  Adams,  and  made  oath,  that  they  knew 
the  property  of  \Vm.  Clarke  for  the  last  two  years ;  that  they  also  knew  the  time 
when  it  was  exposed  to  sale  by  l,(!roy  Secrest,  late  sheriff  of  Lancaster  district,  and 
believe  tlie  said  property  then  sold  for  as  much  as  it  would  have  done  at  any  time 
within  one  or  two  years  previously.  Tliat  part  of  the  property  of  said  Clarke 
consisted  of  goods,  wares,  and  merchandize,  ho  being  a  merchant.  And  we  be- 
lieve tliat  the  way  in  which  the  said  goods  were  sold  was  the  best  that  could  have 
been  prescril)ed,  and  that  they  brouglit  as  much  or  more  than  they  would  if  sold 
in  any  r)ther  way.  That  they  also  believe  the  judgment  creditors  of  said  Clarke 
suffered  no  loss  from  tlic  delay  of  said  Secrest  to  enforce  the  said  executions, 
furtlicr  than  tiie  inconvenience  arising  from  the  delay  of  receiving  the  money. 

Sworn  to  and  subscribed  by  \\.  F.  SADLER, 

J.  ADAMS, 
W.  G.  COXE. 


*320]  PITMAN    ET    AL.    VS.    CLARKE.  209 

The  Court,  after  licaring  the  cause  for  and  against  dissolving  the 
attachments,  as  aforesaid,  made  this  order. 

The  plaintiffs,  by  their  attorney,  having  shown  sufficient  cause  to  the 
rule  taken  out  against  them  by  Leroy  Secrest,  *Esq.,  late  sheriff,  r;jcqc)t 
requiring  them  to  show  cause  why  the  attachment  sued  out  in  ^ 
their  favor  against  him  should  not  be  dissolved, — on  motion  of  Wright, 
ordered  that  the  rule  be  dismissed. 

GROUNDS    OF    APPEAL. 

1.  Because  his  Honor  held  that  he  could  not  order  the  attachments  to  be 
dissolved,  inasmuch  as  it  would  be  setting  aside  the  order  of  another  Judge. 

2.  Because  his  Honor  ruled  that  the  contempt  can  only  be  purged  upon  the 
Sheriff's  paying  over  to  the  plaintiffs,  the  whole  amount  of  the  executions  upon 
which  the  attachments  issned. 

3.  Because  his  Honor  should  have  ordered  the  attachments  to  be  dissolved, 
inasmuch  as  the  sheriff,  under  the  executions,  sold  all  the  property,  real  and 
personal,  which  defendant  owned  or  possessed  at  the  time,  or  since  the  lodgment 
of  the  executions,  thereby  putting  the  plaintiffs  in  as  good  situation  as  if  the 
sheriff  had  sold  before  the  return  of  the  executions. 

Clinton,  for  the  motion,  cited  Ex  parte  Thurman,  1  Bail.  605.  A  party  can  only 
require  the  sheriff  to  place  them  in  the  same  position  that  they  would  be  had  he 
done  his  duty. 

There  was  no  testimony  that  went  to  show  that  the  plaintiffs  in  these  executions 
have  been  damnified. 

That  the  sheriff  could  meet  them  on  the  facts,  if  the  Court  would  order  an  issue 
to  try  whether  the  plaintiffs  have  sustained  any  loss.  Cited  Daniels  vs.  Capers,  4 
McC.  237. 

Wright,  contra. 

Curia,  per  Butler,  J.  I  did  not,  on  the  circuit,  nor  do  I  now,  cines- 
tion  the  authority  of  the  cases  o^  Ex  parte  Thurman,  McGlane  vs.  Du- 
boze,  (1  Bail.  G47.)  It  was  decided  in  these  cases,  that  a  sheriff  could  be 
relieved  from  an  attachment  ordered  against  him,  by  having  it  dissolved, 
when  he  had  shown  that  he  had  used  all  the  means  in  his  power,  under 
the  execution  against  the  defendant,  to  obviate  and  repel  the  conse- 
quences of  his  former  default;  and  when  it  appeared  the  loss  to  be 
suffered  did  not  arise  from  his  negligence,  but  from  the  absolute  insol- 
vency of  the  defendant  in  execution.  There  was  *no  negligence  r^nc).-) 
or  contumacy  imputable  to  the  sheriff  in  those  cases,  for  disobey-  L 
ing  the  positive  instructions  of  the  plaintiff,  or  refusing  to  comply  with 
the  order  of  the  Court,  to  make  the  money,  within  the  time  limited. 
When  a  sheriff  undertakes  to  vary  from  the  requisitions  of  the  law,  in 
his  mode  of  proceeding,  and  to  consult  his  discretion  and  judgment, 
instead  of  obeying  the  mandate  of  the  Court,  he  takes  a  position  which 
entitles  him  to  little  favor  and  indulgence.  A  sheriff  should  never  forget 
that  he  is  a  mere  ministerial  officer  of  the  law,  to  execute,  with  little  or  no 
discretion,  the  judgment  of  the  Court.  The  juilgment,  when  pronounced, 
is  the  voice  of  the  law,  peremptory  and  explicit,  and  should  be  implicitly 
obeyed  by  every  officer  intrusted  with  its  execution.  When  it  shall  be 
regarded  as  a  reproach,  that  a  sheriff  is  ruled  for  not  making  money, 
except  in  cases  of  controversy  and  absolute  inability  to  raise  it  under  y/. 
fa.,  there  will  be  fewer  insolvent  sherifl's,  and  a  greater  confidence  in  legal 
proceedings.  When  an  officer  asks  for  relief  and  forgiveness,  he  should 
YoL.  I.— 15 


210  COLUMBIA,    MAT,    1841.      VOL.  I.  [*322 

either  show  that  he  has  committed  no  wilful  fault,  or  that  he  has  done 
every  thing  in  his  power  to  repair  it.  The  sheriff,  in  the  case  under  con- 
sideration, does  not  occupy  this  situation.  He  wilfully  omitted  to  do 
his  duty  in  the  first  instance,  and  when  he  was  ordered  to  be  attached  for 
his  default,  instead  of  proceeding  forthwith  to  make  tlie  money,  within  a 
time  allowed  him,  and  when  he  was  required  to  do  so  by  the  positive 
instructions  of  plaintiff's  attorney,  he  delays  and  consults  his  own  discre- 
tion— pursuing  a  course  not  sanctioned  by  the  law,  and  one  which  would 
lead  to  great  mischief  if  countenanced  by  this  Court,  that  of  selling  at 
private  sale,  property  levied  on  under  execution. 

We  cannot  look  beyond  the  return  of  Wright,  the  attorney,  and  that 
presents  a  case  of  culpable  negligence  on  the  part  of  the  sheritf. 
Throughout  he  seems  to  have  been  utterly  indifferent  to  legal  process, 
and  to  have  taken  his  own  irregular  and  illegal  course.  He  cannot  com- 
plain if  the  consequences  are  visited  on  him.  The  decision  below  is 
affirmed,  and  this  motion  dismissed. 

The  whole  court  concurred. 

See  Connor  vs.  Archer,  1  Sp.  89  ;  2  Rich.  529.     An. 


*323]  *J.  A.  Kennedy  vs.  Joshua  Sowden. 

The  town  coimcil  of  Columbia,  under  the  act  of  incorporation,  have  the  power 
to  enact  by-law:;,  which  shall  be  binding  upon  the  persons  and  property,  not 
only  of  the  citizens  of  the  town,  but  also  of  non-residents,  when  they  come 
within  the  corporate  limits  of  said  town. 

Before  O'JSTeall,  J.,  Richland,  Spring  Term,  1841. 

This  was  a  summary  process  in  trespass  to  recover  for  a  hog  seized  by 
the  defendant,  as  a  marshal  of  the  town  of  Columbia. 

The  plaintiff  lives  outside  of  the  corporate  limits  of  the  town  of  Colum- 
bia. One  of  liis  hogs  was  found  at  large  in  the  street.  The  defendant, 
under  the  ordinance*  of  the  9th  September,  1839,  to  prevent  goats  and 


*  An  Ordinance  to  prevent  goats  and  swine  from  running  at  large  within  the 
limits  of  the  town  of  Columbia. 

Be  it  ordaiiii"<l  l)y  the  intcndant  and  wardens  of  the  town  of  Columbia,  in 
council  assemhlcd,  that  from  and  after  the  first  day  of  November  next,  no  person 
or  persons  shall  permit  or  suffyr,  his,  her  or  their  goats  or  swine  to  run  at  large 
witliin  the  limits  of  the  town  of  Columbia ;  and  it  shall  be  the  duty  of  the  chief 
marshal,  and  lie  is  hereby  authorized  and  required,  to  employ  persons  to  seize 
and  secure  every  and  all  such  goats  and  swino  so  running  at  large  ;  and  he  is 
further  authorized  au<l  recpiired,  upon  such  taking  and  seizure,  to  impound  the 
same  in  the  lot  adjoiniug  the  guard-house. 

And  be  it  furllicr  ordained.  That  upon  impounding  any  such  goat  or  swine,  the 
marslial  shall  imm.diately  advertise  the  sanu;  at  the  market-house  in  Columbia, 
giving  a  full  and  <orrespon<ling  description  thereof. 

Should  the  owner  or  owners  ai)pear  within  two  days  thereafter,  and  offer  satis- 
factory proof  of  an<l  to  said  property,  th(m  the  marshal  is  authorized  and  directed 
to  deliver  to  him,  her  or  th(«m,  the  same,  upon  the  payment  of  two  dollars  as  a 


*323]  KENNEDY    VS.    SOWDEN.  211 

swine  from  running  at  large  within  the  limits  of  the  town  of  Columbia, 
seized,  impounded,  and  sold  the  hog. 

The  only  question  was,  whether  the  hog  was  liable  to  seizure.  I 
thought  it  was  not.  The  ordinance  can  only  have  eifect  upon  the  inhab- 
itants living  within  the  corporate  limits.  The  plaintiff  living  without  the 
same,  can  in  no  way  be  effected  by  it. 

A  decree  of  thirteen  dollars,  was  given  for  the  plaintiff. 

The  defendant  appeals  and  moves  to  reverse  the  Circuit  decree,  on  the 
ground  that  the  hog  was  liable  to  seizure  under  the  ordinance. 

*j\f.  Gregg,   for  the  motion,   contended  that  tlie  town  council,  by  their  r^o.i^ 
charter,  have  possession  of  the  property  of  strangers  in  the  town,  as  well   '- 
as  of  the  citizens.     He  cited  3  Faust,  65,  or  Act  of  1805  ;    Tuadon  vs.  Eashuick,  1 
Salk.   192;  Butchers'  Comp.  vs.  Moreij,  1  H.   Black.  Rep.  370  ;  Perse  vs.  Parker,  1 
Cowp.  Rep.  2(i9. 

The  object  that  the  Legislature  had,  in  incorporating  the  town  of  Columbia, 
will  be  found  in  the  preamble  to  the  Act,  in  8th  vol.  Stat,  at  Large,  235. 

Cited  Digest  of  Town  Ordinances,  p.  27,  also  35.  He  also  contended,  that  if 
the  view  of  this  case,  taken  by  the  Circuit  Court,  be  sustained,  the  ordinance 
embraced  in  this  case,  and  many  other  ordinances,  would  be  nugatory,  and  the 
power  would  be  incomplete. 

McCrary  vs.  0''  Cain,  3d  vol.  of  Appeal  Rec. 

He  contended  further  that  the  by-laws  of  the  corporation  are  binding  upon  all 
persons  who  come  within  their  jurisdiction. 

Wm.  M.  Myers,  contra,  contended  that  a  preamble  to  an  Act  is  not  necessarily 
a  i^art  of  the  Act,  and  he  would  not  consent  to  a  case  being  made  out  by  suppo- 
sition. 

*nogs  were  the  best  of  scavengers,  and  do  their  duty  better  than  all  r^o-ic 
the  marshals  the  town  has  ever  had.  '• 

The  streets  are  public  highways,  and  every  man  has  a  right  to  them.  It  is  an 
ancient  common  law  right,  that  no  man  can  divest  them  of. 

Tlie  metes  and  bounds  of  the  town  are  ideal ;  there  are  no  fences  or  walls  to 
obstruct  them. 

Unless  the  corporation  could  maintain  the  action  of  quare  clausiim  fregit,  against 
every  man  or  his  horse,  for  stepping  over  these  ideal  bounds,  this  question  is  at 
rest. 

Corporations  arrogate  to  themselves  powers  that  never  were  ceded  to  them. 
He  cited,  on  corporations.  Angel  &  Ames,  199  ;  1  Dane's  Abr.  chap.  2 ;  Kent's 
Abr.  lOG. 

Curia,  per  Evans,  J      It  is  not  controverted,  but  that  the  defendant 

fine,  hereby  imposed  upon  the  owner  or  owners  of  every  goat  or  swine  which  may 
be  so  found  running  at  large,  and  so  impounded  as  aforesaid. 

And  be  it  further  ordained,  Tliat  should  no  owner  appear  within  the  time  here- 
inbefore designated,  to  wit,  within  tAvo  days,  or  appearing,  shall  fail  or  refuse  to 
pay  the  fine  hereby  imposed,  then  it  shall  be  lawful,  and  it  is  hereby  made  the 
duty  of  the  marshal,  to  expose  to  public  sale,  each  and  every  goat  or  swine,  taken 
up  and  impounded  as  aforesaid,  for  the  satisfaction  of  the  said  fine.  And  when- 
ever any  sale,  made  by  virtue  of  this  ordinance,  shall  produce  a  sum  exceeding 
the  said  fine,  the  excess  or  surplus  shall  be  deposited  to  the  credit  of  the  Town 
Council,  to  be  given  to  the  owner  of  the  property  so  sold,  upon  the  same  being 
demanded  within  thirty  days  after  such  sale. 

And  be  it  further  onlained,  That  all  ordinances  and  parts  of  ordinances  in  any 
wise  repugnant  to  or  contrary  to  this  ordinance  be,  and  the  same  is  hereby  repealed. 

Ratified  in  Council  assembled,  this  9th  day  of  September,  A.  D.  1839. 

(Signed)  ROB.  W.  GIBBES,  Intendant. 

By  the  Intendant, 

(Signed)         J.  D.  Teadewell,  Clerk  of  Council. 


212  COLUMBIA,   MAT,    1841.      VOL.  I.  [*325 

acted  in  pursuance  of  the  ordinance  of  the  town  council,  and  the  only 
question  is,  whether  the  council,  by  ordinance,  could  delegate  to  the  de- 
fendant authority  to  seize  the  hog  of  the  plaintiff,  who  was  not  a  citizen 
of  the  towm.  I  presume  it  will  not  be  denied  that  the  Legislature  could 
pass  a  law  requiring  every  man  to  keep  his  hogs  within  his  own  enclosures, 
and  if  he  allowed  them  to  stray  at  large,  to  authorize  the  seizure  and  sale 
of  them.  Previous  to  the  Act  of  1783, (a)  incorporating  the  city  of 
Charleston,  we  find  many  acts  of  the  Legislature  for  the  government  of 
that  city,  similar  to  the  ordinance  under  which  the  defendant  sets  up  his 
justification.  It  would  not  be  competent  for  the  Legislature  to  delegate 
general  powers  of  legislation  to  any  other  body  than  itself;  yet,  it  has  not 
been  doubted,  but  that  it  may  delegate  to  the  corporate  towns,  a  limited 
species  of  legislation,  confined  to  their  corporate  limits,  and  in  strict  sub- 
ordination to  the  constitution  and  general  laws  of  the  land. 

The  ordinance,  in  substance,  prohibits  all  persons  from  suffering  or 
permitting  their  hogs  to  run  at  large  within  the  limits  of  the  town,  and 
requires  the  marshals  to  seize  and  impound  all  such  hogs. 

It  further  directs  the  marshal  to  advertise,  after  impounding,  and  if  the 
owner  appears  and  proves  his  property,  it  shall  be  delivered  to  him,  on 
his  paying  two  dollars  as  a  fine  ;  and  in  the  event  that  no  owner  appears 
to  claim  the  property,  or  appearing,  shall  fail  or  refuse  to  pay  the  fine, 
^R^fiT     then  the  hogs  shall  be  *sold,  and  the  excess  above  the  fine  shall 

~  -'  be  paid  to  the  owner,  if  demanded  within  thirty  days  after  the 
sale. 

By  the  Act  of  1805,  (8  Stat.  235,)  incorporating  the  town  of  Colum- 
bia, the  town  council  are  authcirized  "  to  make  such  ordinances,  rules  and 
regulations,  relative  to  the  streets  and  markets  of  said  town,  as  they  may 
think  proper  and  necessary  ;  and  may  establish  such  by-laws  as  may  tend 
to  preserve  the  quiet,  peace,  safety,  and  good  order  of  the  inhabitants 
thereof;  and  they  may  fix  and  impose  fines  and  penalties  for  the  violation 
thereof,  which  may  be  recovered  in  a  summary  way,  by  the  intendant  and 
wardens,  or  a  majority  of  them."  Similar  provisions,  but  not  in  the  same 
words,  are  to  be  found  in  the  charters  of  the  other  incorporated  towns, 
all  of  which  are  to  be  found  in  the  seventh  and  eighth  volumes  of  the 
Statutes  at  Large.  The  powers  thus  granted  to  the  town  council  are,  I 
apprehend,  sufficient  authority  to  make  any  public  regulations  which,  in 
their  judgment,  may  be  necessary  to  prevent  nuisances,  by  restraining 
hogs  and  goats  from  running  at  large,  the  accumulation  of  filth,  and  the 
butchering  of  hogs  or  cattle  within  the  town  ;  for  the  regulation  of  dis- 
orderly negroes,  and  the  riding  or  driving  of  horses  in  the  streets  ;  upon 
all  which  subjects  it  appears  tliey  have  legislated. 

Indeed,  without  some  regulations  on  these  subjects,  the  good  order, 
quiet,  peace,  and  safety  of  tiie  iiiiialntants  could  not  be  preserved.  So 
obviously  arc  these  subjects  within  tlie  legislative  power  of  the  council, 
that  it  has  not  been  contended  the  ordinance  would  not  operate  upon  the 
hogs  of  a  citizen  of  the  town.  Jiut  it  is  supposed  that  the  power  of  the 
council  is  restricted  to  those  who  reside  within  the  limits  of  the  corpo- 
ration, and  as  the  [)laintiir  is  a  non-resident,  his  hogs  are  privileged  to 
run  at  large,  whilst  the  hogs  of  a  townsman  have  no  such  privilege.    Let 

(a)  7  Stat.  97.     An. 


*326] 


KENNEDY    VS.    SOWDEN.  213 


US  see  if  there  be  any  thing  in  this  objection.  Tlie  power  granted,  is 
restricted  to  the  limits  of  the  town,  but  within  those  limits  no  distinction 
is  mr.de  by  the  Act  of  Incorporation  between  citizens  and  non-residents, 
or  their  property  ;  and  it  is  clear  that  unless  they  come  within  the  con- 
trolling i)Ower  of  the  town  authorities,  when  found  witliin  its  limits,  the 
power  would  be  of  but  little  avail  in  the  attainment  of  the  objects  for 
which  it  was  granted.  Nothing  can  be  more  dangerons  to  the  safety  of 
persons  passing  along  the  streets,  than  the  running  of  horses,  and  yet  if 


the  law  of  *the  town  council,  on  that  subject,  be  obligatory  only 


[*327 


on  the  residents  of  the  town,  this  plaintiff,  or  any  one  resident 
beyond  boundary  street,  might  make  a  race  path  of  the  streets  of  Colum- 
bia. The  laws  passed  by  the  council,  for  the  government  of  slaves, 
would  be  of  but  little  value,  if  the  numerous  negroes  who  reside  in  the 
vicinity  could  violate  them  with  impunity.  But  the  arguments  deduced 
from  expediency  and  inconvenience,  do  not  stand  unsupported  by  the 
authority  of  the  common  law.  The  case  of  Price  vs.  Barlrain,  (Cowp. 
269,)  was  an  action  to  recover  a  penalty  for  slaughtering  two  oxen  within 
the  city  of  Exeter,  contrary  to  a  by-law  made  by  the  Mayor  and  Common 
Council,  under  a  general  power  given  them  by  charter.  Lord  Mansfield 
said,  "As  to  the  objection  that  the  defendant  was  a  stranger,  what  my 
brother  Glynn  has  said,  is  a  complete  answer  to  it ;  namely,  that  he  is 
an  inhabitant  pro  hoc  vice,  and  consequently  is  bound  by  the  same 
requisition  as  the  other  members  of  the  corporation.  Therefore,  I  am 
of  opinion  the  by-law  is  good."  The  other  Judges  concurred.  In  that 
case  the  defendant  had  notice  of  the  by-law,  but  was  not  free  of  the  cor- 
poration, and,  therefore,  not  a  member  of  it.  The  same  principle  is  to 
be  collected  from  the  case  of  the  Butchers^  Company  vs.  Mover/,  (1  Bla. 
370.)  These  cases  clearly  establish,  that  if  a  stranger  violate  a  by-law 
of  a  corporation,  within  its  limits,  having  knowledge  of  the  by-law,  he  is 
as  liable  as  if  he  resided  within  the  corporate  limits.  But  it  is  supposed 
a  difference  exists  between  such  a  case  and  the  one  under  consideration. 
I  am  at  a  loss  to  conceive  in  what  the  difference  consists.  The  evil  to 
be  remedied  is  as  great  in  the  one  case  as  the  other.  If  a  non-resident 
is  bound  to  the  observance  of  a  known  by-law,  as  well  as  a  resident,  I  do 
not  perceive  why  the  hogs  of  the  one  shall  be  exempt,  and  not  the  other. 
It  was  said  in  the  arguments  that  every  man  has  a  right  to  turn  his 
hogs  on  any  unenclosed  grounds  How  far  this  may  be  true,  it  is  not 
necessary  now  to  discuss.  Is^o  one  will  doubt  that  this  right  may  be 
abridged  by  legislation,  and  that  laws  may  be  passed  to  limit  or  restrain 
it  altogether.  A  law  similar  to  the  ordinance  now  in  question,  was 
passed  by  the  Legislature,  in  relation  to  the  City  of  Charleston,  before 
the  incorporation  of  that  city ;  and  if  this  liberty  of  hog  range  may  be 
abridged  by  the  Legislature,  it  may  be  abridged  by  the  City  Council  of 
♦Charleston,  or  the  Intendant  and  Wardens  of  Columbia,  or  any  rsjcogo 
other  body  to  whom  the  Legislature  have  delegated  the  authority.  L 
The  only  case  like  the  present  which  has  been  decided  in  our  Courts,  of 
which  I  have  any  knowledge,  is  the  case  of  McRa  vs.  Olain,  among  the 
unpublished  decisions  of  this  Court.  In  that  case,  the  Council  of  Camden, 
by  ordinance,  declared,  "that  it  shall  not  be  lawful  to  permit  hogs  to  run 
at  large  within  the  limits  of  the  town  of  Camden,  and  it  shall  be  the  duty 
of  the  town  marshal,  and  he  is  required,  to  kill  and  destroy  every  hog 


214  COLUMBIA,    MAY,    1841.      YOL.  I.  [*328 

which  may  be  found  running:  at  large  within  the  limits  of  the  said  town, 
and  mav  apply  the  hogs  so  killed  to  his  own  nse  ;"  with  a  pj-oviso,  that 
it  shall  "not  extend  to  such  as  are  usually  kept  without  the  limits,  and  may 
happen  to  stray  into  the  town.  Under  this  ordinance,  the  defendant 
seized  and  sold  the  plaintiff's  hog,  and  for  this  the  action  was  brought. 
The  case  in  this  Court  turned  upon  the  question,  whether  the  ordinance 
was  in  pursuance  of  the  power  granted  by  the  charter.  By  reference  to 
the  Act  incorporating  the  town  of  Camden,  (8  Stat.  220,)  it  appears 
that  the  only  mode  of  enforcing  the  by-laws  of  the  corporation,  was  by 
fine,  and  it  was  held  that  an  ordinance  authorizing  the  marshal  to  kill 
and  appropriate  the  hog  to  his  own  use,  was  not  in  pursuance  of  an 
authority  to  enforce  the  by-laws  of  the  corporation  by  fine.  No  such 
objection  arises  here.  The  Act  of  Incorporation  of  the  town  of  Colum- 
bia gives  the  power  to  pass  by-laws,  and  to  fix  and  impose  fines  and 
penalties  for  the  violation  thereof.  The  ordinance  under  which  the 
defendant  in  this  case  justifies,  imposes  a  fine  of  two  dollars,  and  directs 
the  seizure,  impounding  and  sale  of  the  hog,  to  raise  the  fine ;  and  it  is 
the  opinion  of  this  Court,  that  the  ordinance  was  a  legal  justiBcation  to 
the  defendant  for  the  seizure  of  the  hog,  and  the  motion  is  therefore 
granted. 

The  whole  Court  concurred. 

See  6  Rich.  415,  558  ;  1  Rich.  390 ;  2  Sp.  761 ;  2  McM.  233.     An. 


♦329]  *JoHN  Hogg  vs.  J.  G.  Gill. 

A  right  of  way,  by  prescription,  implies  an  adverse  use  of  the  way  for  twenty 
years  ;  and  the  party  using  the  way,  must  use  it  as  though  he  was  exercising  a, 
right  of  property  in  himself,  uncontrollable  by  the  owner  of  the  soil  over  which 
it  runs. 

Before  Butler,  J.,  at  York;  Spring  Term,  1841. 

This  was  an  action  on  the  case,  to  try  the  right  of  way.  Tlie  plaintiff 
claimed  by  prescription,  and  declared  "for  a  way  from  his  residence  to 
the  Pinkncy  or  Blairsville  road.  For  a  short  distance,  the  road  was 
through  i)Iaintiff's  land,  who  claimed  under  one  Miller,  whose  daughter 
he  married;  and  thence  through  defendant's  land,  to  the  Blairsville  road. 
In  1815,  Miller  bought  the  land  on  which  plaintiff  resides,  from  James 
Gill.  The  land  adjacent  to  it  then  belonged  to  defendant  or  his  father, 
and  tlic  residue  of  the  land  on  which  the  wav  run,  belonged  to  Thomas 
Hogg,  the  fatiier  of  plaintiff  At  the  time  Miller  settled,  there  was  a 
winding  bridh;  way  tlirough  the  above  tract  of  land,  leading  to  Blairsville. 
For  the  pnrp(.se  of  hauling  his  cotton  to  Blair's  gin.  Miller  cleared  out 
the  way  in  1810  ;  and  after  that  time,  he  and  the  neighbors  used  it  indif- 
ferently, in  going  part  of  the  way  to  church  and  to^the  mill,  as  well  as 
to_  the  gin.  The  r«jad  to  Harmony  church,  turned  off  not  far  from 
Miller's  house;  some  persons  travelled  it  the  whole  distance,  in  coming 
to  Miller's  mill,  and  Miller  used  it  occasionally  in  going  from  his  house 
to  other  mills.     There  was  no  evidence  that  the  road  had  been  worked 


*329]  HOGG    vs.    GILL.  215 

on  by  any  one  in  particular,  after  it  was  first  cleared  out  by  Miller.     It 
was  called  the  Miller  road.     In  1823,   the  defendant  bought  Thomas 
Hogg's  land,  which  made  him,  as  before  stated,  owner  of  all  the  land 
Iving  between  plaintiff  and  the  Blairsville  road.     About  the  time  he 
purcliased  from  Hogg,  defendant  cleared  a  field  across  the  way,  which 
was  about  seventeen  years  before  this  action  was  brought.    When  he  put 
up  his  fence,  he  cleared  out  a  road  around  his  field.     Some  of  the 
witnesses  said  he  cleared  out  the  way  only  to  where  his  own  road  struck 
the  field ;  others  say  that  he  cleared  out  a  way  round  the  field  towards 
Miller's.     Upon  this  point,  the  testimony  was  irreconcilable.    There  was 
no   objection  made  by  Miller,  at  the  time  the  field  was   cleared,   that 
his  way  would  be  obstructed,  nor  *was  there  any  evidence  that  r^ooA 
the  defendant  had  consulted  him   on  the  subject.     About  two  ^ 
years  before  this  action  was  brought,  the  defendant  run  two  fences  across 
the  road,  and  cut  a  ditch.    Before  he  cut  the  ditch,  he  put  up  a  gate  next 
to  Miller's,  on  the  line,  about  a  hundred  yards,  at  a  right  angle  to  the  way. 
This  he  did  for  his  own  convenience  in  passing  to  his  own  plantation,  and  to 
accommodate  the  neighbors.     The  plaintitf  objected  to  the  gate,  insisting 
that  the  old  way  should  be  opened,  or  a  gate  put  on  that.    Defendant  then 
asserted  his  right,  by  putting  a  ditch  across  the  way ;  and  this  action  was 
brought.   The  plaintiff  and  those  under  whom  he  claimed,  as  well  as  others, 
have  been  using  the  way  for  more  than  twenty  years,  and  the  question 
was,  whether  they  have  used  it  under  such  circumstances  as  to  give  the 
plaintiff  a  right  by  prescription.     I  charged  the  jury  that  as  a  right  by 
prescription  was  founded  on  the  presumption  of  a  grant,  the  use  of  the 
way  must  be  adverse ;  that  is,  that  the  party  claiming  it,  should  enjoy  it 
as  though  he  had  a  right  to  do  so  under  a  grant,  or  at  least  in  a  way 
that  would  be  consistent  with  the  presumption  of  a  grant.    That  if  it  ap- 
peared from  the  manner  of  the  use,  that  the  way  was  enjoyed  by  the 
sufferance  and  permission  of  the  owner  of  the  soil,  or  that  the  party 
claiming  the  way  acknowledged  by  any  concession  the  right  to  obstruct 
it,  then  the  right  by  prescriptive  use  could  not  be  acquired.     I  further 
said,  that  a  neighborhood  path,  running  entirely  through  woodland,  as 
this  did,  should  generally  be  regarded   as  a  mere  convenience  to   the 
neighbors  indifferently.     But  that,  nevertheless,  a  way  might  be  acquired 
through  forest  land  by  prescription,  when  the  claimant  exercised  such  a 
control  as  to  indicate  a  right  to  it.     In  the  course  of  my  remarks  to  the 
jury,  I  said  that  the  presumption  of  right  by  prescriptive  use,  arising 
from  a  grant,  would  be  lessened  from  the  fact  that  many  persons  travelled 
the  way  indifferently,  and  that  it  passed  over  several  distinct  grants ;  and 
that  it  would  be  increased  when  the  way  was  used  by  one,  and  passed 
over  one  entire  grant. 

The  jury  found  for  the  defendant. 

GROUNDS    OF   APPEAL. 

1.  Because  the  case  made  by  the  evidence,  clearly  gave  the  plaintiff  his 
right  of  way,  as  claimed. 

*2.  Because  bis   jlouor  erred,  in  saying  to  the  jury,  in  his  charge,  pqoi 
that  if  they  came  to  the  conclusion  that  Hugh  Miller  used  the  way  only  '- 
by  permission,  that  would  be  fatal  to  plaintiff's  right. 

3.  Because  his  Honor  erred,  in  saying  to  the  jury  that  others  using  the  way, 
was  a  presumption  against  Hugh  Miller  under  whom  plaintiff  claimed. 


216  COLUMBIA,    MAY,    1841.      VOL.  I.  [*331 

4.  Because  the  Court  charged  the  jury  that  it  was  fatal  to  the  plaintiff's 
rio-lit  to  recover,  if  they  believed  that  (iilfdid  not  open  a  way  for  Miller  round 
his  first  field  he  cleared  on  the  line  of  the  old  way  ;  when  that  was  only  a  slight 
change  ;  and  even  if  Hugh  Miller  had  opened  the  way  himself,  and  was  thereby 
entitfed  to  enjoy  his  right  of  way  over  the  other,  and  main  part  of  the  road,  this 
could  not  effect  his,  the  defendant's,  right  by  prescription. 

Curia,  pej'  Butleb,  J.  The  grounds  of  appeal  in  tliis  case  would 
go  to  question  the  authority  of  the  case  of  Sims  vs.  Davis,  (Cheves' 
Rep.  1.)  The  well  considered  judgment  in  that  case  received  ray  entire 
approbation  and  concurrence  when  it  was  pronounced,  and  instead  of 
my  confidence  in  the  soundness  of  its  views  being  diminished,  it  has  been 
confirmed  by  trial  and  examination.  My  instructions  to  the  jury,  in  the 
case  under  consideration,  were  in  conformity  with,  and  but  illustrative  of 
the  general  in-inciples  which  that  decision  maintains.  I  held  that  a  right 
of  way,  by  prescription,  implies  an  adverse  use  of  it  for  twenty  years,  and 
is  founded  on  the  presumption  of  a  grant  in  its  origin.  The  party  using 
the  w^ay  must  do  so,  as  though  he  was  exercising  a  right  of  property  in 
himself,  uncontrollable  by  the  owner  of  the  soil  over  which  it  runs.  A 
supposition  of  right  is  irreconcilable  with  such  circumstances  as  would 
indicate  a  recognized  permission  of  the  owner,  or  an  acquiescence  in  the 
right  to  stop  the  way  at  his  pleasure.  When  lands  are  enclosed,  or 
otlierwise  specifically  appropriated,  any  encroachment  on  them  will  be 
soon  known  and  promptly  resisted.  A  way  could  not  be  well  used  over 
such  lands,  without  the  knowledge  of  their  owners  ;  and  when  it  has 
been  respected  and  preserved  for  twenty  years,  its  right  is  in  some  degree 
conceded — at  least,  the  use  for  such  a  length  of  time,  of  such  a  w^ay, 
might  be  regarded  as  adverse,  and  sutBcient  to  presume  a  grant.  On 
^qqg-i  ^lie  contrary,  where  the  way  *runs  entirely  through  wild  and  un- 
"-J  aj)propriated  forest,  no  such  presumption  could  naturally  arise. 
The  owner  of  the  land  might  not  know  of  the  existence  of  the  way,  or 
having  no  immediate  use  for  the  land,  might  have  no  inducement  to 
oppose  the  use  of  it.  His  acquiescence,  in  such  case,  is  founded  on  the 
assumption  of  all  concerned,  that  he  can  appropriate  the  land  whenever 
he  might  think  proper  to  do  so.  Persons  travel  and  use  such  a  way 
under  an  implied,  but  revocable  license,  and  regard  it  a  mere  con- 
venience to  be  enjoyed  at  sufferance,  without  ever  thinking  of  a  right  in 
themselves. 

These  views  authorize  this  conclusion,  that  the  use  of  a  way  for  twenty 
years,  througli  enclosed  ground,  implies  that  it  is  adverse ;  but  when  it 
runs  entirely  through  unappropriated  forest  it  is  merely  permissive.  In 
the  first,  there  is  a  presumption  of  a  grant  which  cannot  be  resisted  but 
by))roofto  relmtit;  in  the  other,  this  ])resumption  does  not  exist,  but 
by  some  evidence  to  raise  it.  On  tiie  trial  of  tliis  case,  by  way  of  illus- 
trating my  views  to  the  jury,  I  said  that  a  presumption  of  a  right  of  way 
by  |)rescription  was  diminished  by  the  fact  that  many,  under  the  same 
circumstances,  travelled  the  way,  and  that  it  passed  over  several  tracts 
of  land  owned  by  dilfcront  proprietors — for  in  such  a  case,  many  con- 
tracts would  have  to  lie  j)resuined.  Minors  might,  peradventure,  own 
some,  and  as  their  lands  could  not  be  taken  from  them,  by  twenty  years 
possession,  acquired  during  their  minority,  no  one  could  acquire  a  right 
of  way,  in   them,  under  such  circumstances.     The  exception  taken  to 


*332J  BUGG    vs.    SUMMER.  217 

these  remarks,  (for  tliey  can  only  l)e  regarded  as  remarks,)  can  avail  the 
appellant  nothing.  The  case  authorized  them,  and  they  served  but  as 
illustrations  of  the  views  of  the  presiding  Judge,  in  his  instructions  to 
the  jury. 

We  think  the  facts  of  this  case  fully  sustain  the  verdict  of  the  jury. 
The  way  claimed,  seemed  to  have  been  turned  and  changed  by  defendant 
whenever  he  had  occasion  to  clear  his  land.  It  had  lost  its  identity  by 
the  repeated  acts  of  defendant,  without  any  assertion  of  right  at  the 
time,  on  the  part  of  the  plaintiff,  or  those  under  whom  he  claims. 

The  motion  is  dismissed. 

The  whole  Court  concurred. 

Thompaon  and  Smith,  for  the  motion.     G.  Williams,  contra. 
See  Supra,  49,  and  cases  there  cited  in  note.     An. 


*Sally  Bugg  vs.  H.  Summer,  Adm'r.  [*333 

Where  there  is  a  plaintiff  who  can  sue,  and  a  defendant  who  can  he  sued,  the 

Statute  of  Limitations  begins  to  run. 
The  Statute  of  Limitations  is  not  suspended  during  the  time  that  elapses  between 

the  death  of  an  administrator  and  the  administration  de  bonis  non. 

Before  Evans,  J.,  at  Newberry,  Spring  Term,  1841. 

This  was  an  action  on  an  account  for  work  and  labor.  Sally  and  Sam 
Bugg  were  free  persons  of  color,  and  brother  and  sister.  They  lived  and 
worked  together.  Both  were  industrious,  and  the  surplus  of  their  gains, 
after  paying  expenses,  was  employed  by  Sam  in  the  purchase  of  some 
property.  In  1835,  Sam  made  some  declarations  which  might  admit  of 
the  construction  that  he  was  liable  to  pay  her  for  her  services.  He  died 
soon  after,  in  February  of  the  same  year.  Letters  of  administration  were 
granted  to  I'amage,  iu  March,  1835.  He  died  about  two  years  after. 
Administration  de  bonis  non  was  granted  to  defendant,  15th  January, 
1840.  This  action  was  commenced  29th  January,  1840.  The  question 
submitted  was,  whether  the  demand  was  barred  by  the  statute  of  limita- 
tions. From  the  death  of  Sam,  to  the  beginning  of  this  suit,  was  nearly 
five  years,  so  that  if  there  had  been  but  one  administration,  the  action 
was  barred,  and  the  only  question  was,  whether  nine  months  is  to  be 
added  to  the  four  years  for  each  administration.  This  could  not  well  be, 
when  the  writ  in  this  case  was  issued  fourteen  days  after  the  grant  of  the 
second  administration,  and  because  the  debt  was  actually  barred  before 
the  second  administration  was  taken  out.     The  plaintiff  was  nonsuited. 

The  plaintiff  appeals,  and  moves  the  Court  to  set  aside  the  nonsuit,  on  the 
ground,  that  the  statute  of  limitations  did  not  run  during  the  time  there  was 
no  administration  on  the  estate  of  the  defendant's  intestate. 

Jleller,  for  the  motion,  Fair,  contra,  submitted  the  case  without  argument. 

Curia,  per  Evans,  J.  The  Court  concurs  with  the  Circuit  Judge. 
Whenever  there  is  a  plaintiff  who  can  sue,  and  a  defendant*  who  r^^oqi 
cau  be  sued,  the  statute  of  limitations  begins  to  run.     A  right  of  ^ 


218  COLUMBIA,    MAT,    1841.      VOL.  I.  [*334 

action  has  accrued  to  the  plaintiff,  (o)  The  general  rule  is,  that  if  the 
statute  begins  to  runs,  it  is  not  suspended  by  any  subsequent  event.  (6) 
The  only  exceptions  which  I  recollect,  are  infant  owners  of  land,  under 
the  Act  of  18i.'4,  (6  Stat.,  238,  §  1,)(c)  executors  and  administrators,  who 
cannot  be  sued  until  nine  months  have  expired,  and  the  case  of  war  be- 
tween the  nations  to  which  the  plaintiff'  and  defendant  respectively  be- 
long, (r/)  Without  inquiring  whether  the  plaintiff  might  not  have  sued 
Sam  Bugg  in  his  lifetime,  there  could  be  no  doubt  she  could  have  sued 
Raraage,  his  administrator,  after  the  expiration  of  nine  months  from  the 
date  of  his  administration,  in  March,  1835.  The  plaintiff's  action  would 
have  been  barred,  if  Ramage  had  lived,  in  four  years  and  nine  months 
from  March,  1835,  which  could  not  extend  beyond  December,  1839, 
unless  by  the  death  of  Ramage  the  statute  was  suspended  until  adminis- 
tration was  granted  to  the  defendant.  This  would  be  against  all  the 
authorities.  In  the  case  of  llcCulhugh  vs.  Sjjeed,  (3  McCord,  455,) 
the  statute  commenced  to  run  against  McCullough,  in  his  lifetime. 
Sometime  elapsed  between  his  death  and  the  granting  of  administration 
to  the  plaintiff.  If  this  time  was  deducted,  the  debt  was  not  barred. 
But  it  was  decided  that  as  the  statute  commenced  to  run  against 
McCullough,  it  was  not  suspended  by  the  fact  that  after  his  death  some 
time  elapsed  before  administration  was  granted.  This  case  must  be 
governed  by  the  same  principle,  and  the  motion  is  dismissed. 

Richardson,  O'Neall,  and  Butler,  JJ.,  concurred. 


*335]  *B.  H.  Ragsdale  vs.  C.  L.  Thorn. 

Upon  the  plea  of  "  non  est  factum  "  solely,  a  defendant  cannot  go  into  evidence  of 
the  failure  of  the  consideration.  He  must  give  notice  to  the  plaintiflf  of  such  mat- 
ter.     Vide  Bolinger  vs.  Thurston,  2  Mills,  Const.  Rep.  447  ;  and  1  Hill,  370. 

Wilful  misrepresentation,  or  any  other  matter  which  will  go  to  show  that  a  bond, 
note,  or  other  instrument,  was  void  in  its  creation,  may  be  given  in  evidence 
under  the  general  issue. 

Before  Earle,  J.,  at  Chester,  Fall  Term,  1840. 

Debt  on  sealed  note  given  for  a  piece  of  land,  purchased  by  the  defend- 
ant of  the  i)laintiff.  The  defendant,  under  the  general  issue,  and  without 
notice  of  discount,  o8"cred  to  prove  and  was  prepared  to  prove,  that  the 
plaintiff,  when  he  contracted  to  sell  the  land  to  the  defendant,  represented 
the  boundary  on  one  eide,  as  extending  to  the  road,  a  public  highway, 
near  which  it  was  admitted  to  be  situated ;  that  it  intersected  the  road, 
or  extended  to  it  as  a  boundary  ;  whereas,  in  fact,  this  was  untrue,  and 
the  land  of  another  intervenes  between  that  purchased,  and  the  public 
road,  whereby  the  defendant  is  excluded  from  it;  that  this  materially 
affects  the  same,  as  the  defendant's  object  was  to  set  a  retail  shop  on  the 
road. 

(a)  3  M'C.  452;   2  Mi.  C.  R.  2G!) ;   2  M'C.  l.'il.     An. 

(b)  4  Rich.  (;19  ;  Act  of  1824;  3  Bur.  438,  153;  3  M'C.  451,  overruling  1  M'C. 
139;  2N.  &  McC.  29().     An. 

(c)  1  N.  &  Mc(;.  334 ;  4  M'C.  422.  An.  (d)  Eohson  vs.  Wall,  2  N.  &  McC.  498.  An. 


^335] 


RAG SD ALE   VS.   THORN.  219 


On  the  state  of  the  pleadings,  I  overruled  the  defence,  and  instructed 
the  jury  to  find  for  the  plaintiff.  The  defendant,  at  the  last  term,  obtained 
leave  to  file  a  special  plea,  which  he  had  omitted  to  do,  and  after  the  trial 
was  entered  upon  I  refused  leave  to  put  in  the  plea. 

GROUNDS    OF   APPEAL. 

1.  Because  defendant  should  have  been  allowed  the  benefit  of  defence  under 
the  general  issue,  as  the  defence  went  to  the  whole  of  plaintiff's  demand,  and 
showed  defendant  did  not  receive  any  consideration  for  the  note  sued  on,  which 
had  been  obtained  by  misrepresentations  of  plaintiff  on  the  subject  of  the  land 
for  which  the  note  was  given. 

2,  Because  the  defendant  should  have  been  permitted  to  put  in  the  special 
plea,  if  necessary,  as  the  same  was  not  done  on  account  of  the  sickness  of 
defendant's  counsel,  and  plaintiff  had  notice  of  the  plea  at  the  last  spring 
term. 

*3.  Because  the  verdict  is  not  according  to  law  and  evidence.  [*336 

Thompson  S,-  Eaves,  for  the  motion,  cited  2  Hill,  656-7,  Brickell  ads.  Means. 
Where  an  instrument  is  obtained  by  fraud,  the  party  should  have  a  right  to 
offer  liis  defence  in  any  way,  and  should  not  be  required  to  plead  specially, 
when  the  other  party  is  not  taken  by  surprise. 

The  case  should  have  been  submitted  by  the  Court  to  the  jury,  to  inquire  into 
the  fact,  whether  it  was  obtained  by  fraud  or  not. 

M.  Williams,  contra.  Defendant  cannot  give  in  evidence  any  misrepresenta- 
tions of  ])laintifF,  unless  the  same  be  speciallv  pleaded. 

Cited  Means  vs.  Brickell,  2  Hill,  G56-7  ;  1  Bay  Rep.'  278  ;  2  Const.  Rep.  447  ;  1 
N.  &  M'C.  78. 

Thompson,  in  reply,  commented  at  length,  and  with  great  ability,  on  the  case 
from  1  Bay,  278.  He  also  contended  that  the  defect  in  the  pleadings  arose  from 
the  indisposition  for  a  long  time  of  Major  Eaves,  and  on  that  account  desired,  the 
case  to  be  sent  back. 

Curia,  j^er  O'Neall,  J.  We  agree  with  the  presiding  judge  below, 
that  on  the  state  of  the  pleadings,  the  defence  could  not  be  sustained. 
The  rule  is  very  clearly  stated  in  Bollinger  vs.  Thurston,  (2  Mill's  Con. 
Rep.  447,)  that  upon  the  plea  of  non  est  factum,  solely,  the  defendant 
cannot  go  into  evidence  of  the  failure  of  the  consideration  ;  he  must  give 
notice  to  the  plaintiff  of  such  matter.  In  Hunter  vs.  Graham,  (1  Hill, 
370,)  the  subject  was  again  considered  and  the  rule  reiterated.  The  Act  to 
regulate  the  practice  of  the  Courts  of  law, (a)  in  certain  cases,  (Acts  of  '31, 
p.  46,)  which  provides  "  that  in  all  actions  of  debt  on  bond,  the  defendant 
shall  be  at  liberty,  under  the  plea  of  the  general  issue,  to  offer  in  evidence 
any  matter  tending  to  show  that  the  bond  was  void  in  its  creation,  provided 
twelve  days'  notice  be  given  to  the  opposite  party  of  the  nature  of  the 
defence  intended  to  be  relied  on,"  would  seem  to  impliedly  sanction  the 
doctrine,  that  no  defence  which  admitted  the  execution  of  the  bond,  could 
be  given  in  evidence  under  the  general  issue,  before  its  passage,  r*oo^ 
*and  only  by  giving  notice  since.  But  the  second  clause  of  the  Act  ^ 
reserves  the  right  which  might  then  exist  according  to  the  laws  and 
usages  of  this  State,  of  giving  any  matter  in  evidence  under  the  general 
issue.  Putting  the  two  clauses  together,  I  suppose  the  Act  was  intended 
to  solve  what  was  thought  to  be  a  doubtful  question  of  practice ;  and  it 
would  be  well  now,  perhaps,  to  conform,  in  practice,  generally  to  its  pro- 
visions.    Still,  however,  I  have  no  doubt  that  any  matter  which  shows 

(a)  6  Stat.  438.     An. 


220  COLUMBIA,   MAY,    1841.      VOL.  I.  [*337 

tliat  the  bond  was  void  in  its  creation,  may  be  given  in  evidence  under 
the  general  issue. (a)  If,  as  the  defendant's  counsel  supposed,  it  had  been 
shown  that  the  single  bill  in  this  case,  had  been  obtained  by  fraud,  I 
should  have  entainecl  no  doubt  that  that  defence  was  available  under  the 
general  issue.  But  misrepresentation  is  not  necessarily  fraudulent.  (6) 
"Wilful  misrepresentation  must  be  so.  But  a  mistake  or  ignorance  may 
cause  a  misrepresentation  that  would  not  be  such  a  fraud  as  to  render  an 
instrument  void.  On  the  present  occasion,  the  scienter  has  not  been 
brought  home  to  the  plaintiff,  and  hence  there  can  be  no  doubt  in  saying 
that  the  single  bill  was  not  void  in  its  creation,  and  that  the  defendant's 
defence  was  a  partial  or  entire  failure  of  consideration,  neither  of  which 
defences  could  avail  him  under  the  plea  of  7ion  est  factum. 

The  second  ground  of  the  defendant's  motion  cannot  help  him  here. 
The  matter  alluded  to  in  it,  was  addressed  to  the  discretion  of  the  Judge 
below.  That  it  was  properly  exercised,  we  would  not  lightly  question. 
On  this  occasion,  however,  there  is  no  doubt  that  the  defendant  had  no 
right  to  ask  further  indulgence.  At  a  previous  term  he  had  been 
allowed  several  months  to  file  the  plea.  During  all  that  time,  with  the 
exception  of  perhaps  one  day,  his  counsel  was  well.  If  that  which  ought 
to  have  been  done,  was  not  done,  to  what  cause  is  it  to  be  ascribed  ? 
Certainly  not  to  the  act  of  God.  The  untiring  industry  and  zeal  of  the 
junior  counsel  for  the  defendant  negatives  the  notion  that  the  non-filing 
of  the  plea  arose  from  his  neglect.  It  was,  I  presume,  not  done, 
because  upon  reflection  it  was  not  supposed  to  be  necessary. 

The  motion  is  dismissed. 

The  whole  Court  concurred. 


*338]  *The  State  vs.  Elijah  Derrick. 

Two  indictments  may  be  sustained  under  the  Act  of  1839,  a.sjainst  the  putative 
_     father  of  two  bastard  children,  born  at  one  birth  ;  but  the  indictments  and  the 

recognizances  should  describe  each  child  by  name  and  complexion,  hair  and 

sex,  or  by  some  means  of  separate  identity. 
The  Act  of  1839,  is  a  repeal  of  the  Act  of  1795,  on  the  subject  of  bastardy. 

Before  Evans,  J.,  at  Lexington,  Spring  Term,  1841. 

This  was  an  indictment  for  bastardy.  It  appeared  that  one  Mary 
Stuck  had  been  delivered  of  two  bastard  children  at  one  birth,  and 
charged  the  defendant  as  the  father.  There  were  separate  indictments 
for  each.  Defendant  was  tried  and  convicted  on  the  first,  and  then 
pleaded  that  in  bar  of  this,  to  which  there  was  a  demurrer.  The  Act  of 
1795  contains  a  provision  in  case  there  are  two  children  born  at  a 
birth.  By  that  Act,  the  indictment  should  be  for  both.  The  Act  of 
1839  containsno  such  provision,  and  the  Solicitor  thought  himself  bound 
to  indict  for  each  separately,  under  the  latter  Act.  There  are  many 
reasons  why  the  indictment  should  include  both,  and  I  do  not  perceive 
any  such  inconsistency  between  the  two,  as  to  suppose  the  latter  was  a 

(a)  See  4  Ricli.  507.     An.  (6)  gee  2  Hill,  G57.     xin. 


*338]  STATE   VS.    DERRICK.  221 

repeal  of  the  former.     Without  having  any  clear  or  distinct  opinion  on 
the  question,  I  sustained  the  plea  by  overruling  the  demurrer. 

GROUNDS    OF    APPEAL. 

1.  Because  an  indictmont  cannot  be  sustained  under  the  Act  of  1795,  for 
two  bastard  children  (born  at  a  birth,)  since  the  Act  of  1839. 

2.  Because  a  separate  indictment  will  lie  against  the  putative  father  for  each 
bastard  child,  (whether  there  be  one,  two,  or  more,  at  a  birth,)  that  has  been 
born  since  the  act  of  18.39,  and  therefore  the  defendant's  plea  ought  to  have 
been  overruled,  and  the  demurrer  should  have  been  sustained. 

Caldwell,  Solicitor,  for  the  motion,  cited  2  Stat,  at  Large,  224,  and  contended 
that  it  was  a  separate  cause  of  action. 

A.  A.  1795,  2  F.  94.  Under  this  Act,  where  a  woman  was  delivered  of  two 
bastaKd  children,  the  putative  father  shall  enter  into  bond  for  £120,  and  be  sold 
only  for  four  years. 

*A.  A.  1839,  16.  Material  difference  between  this  and  the  Act  of  1795.  r^ooq 
The  penalty  was  increased  from  £5  to  £25  per  annum.  t 

Does  the  Act  of  1839  repeal  the  Act  of  1795  ? 

The  Act  of  18:59  is  a  revision  of  the  Bastardy  Law.  (a) 

See  the  Blue  Book,  p.  79. 

Cited  Miller's  case  ;   1  W.  B.  Rep.  451.     Rex  vs.  Caper,  4  Burr.  2026  ;  2  Leach 
Cases,  228 ;  2  II.  B.  Rep.  620. 

Can  an  indictment  contain  two  counts  for  distinct  and  separate  offences  ? 

Boozer,  contra,  said  the  indictments  were  transcrijits  of  each  other,  both  male 
children. 

Cited  5  Cooper's  Stat.  270 ;  1  B.  Con.  81  ;  6  Bac.  Abr.  373  ;  id.  382. 

Mr.  B.  said  this  was  as  to  the  defendant,  an  ex  post  facto  law — that  the  children 
were  got,  although  not  born,  before  the  passage  of  the  Act  of  1839. 

Curia,  per  O'Neall,  J.  That  the  Act  of  '39  is  a  repeal  of  the  Act 
of  '95,  is  fully  shown  by  a  reference  to  the  rules  stated  on  that  subject,  in 
the  case  of  High  ton  vs.  Wood,  (Dad.  Law  Rep.  164;)  Act  of '39,  16;  5 
Stat,  at  Large,  270. 

The  single  fact,  that  the  penalty  of  the  last  Act  is  a  greater  one  than 
that  imposed  by  the  former,  makes  it  impossible  that  the  two  should 
stand  together  as  cumulative,  or  to  be  construed  in  pa?•^■  materia.  The 
same  offence  cannot  at  the  same  time  be  subject  to  two  different  punish- 
ments. The  fact  that  this  would  be  the  case  if  two  statutes  were  con- 
sidered to  be  of  force,  shows  the  maxim,  "  leges  posteriores  priores 
abrogant,^^  must  have  effect. 

The  case  of  T/ie  Slate  vs.  Ben.  Evans,  (3  Hill,  190,)  is  an  instance  of 
the  application  of  this  principle.  The  defendant  was  indicted  under  the 
Act  of  1817,  for  trading  with  a  slave  without  a  written  ticket  from  his 
master  or  employer,  by  selling  to  him  spirituous  liquors.  Tlie  Act  of 
1834  subjects  any  one  who  shall  sell,  exchange,  give  or  deliver  spirituous 
liquors  to  a  slave,  without  a  written  ticket,  to  a  less  penalty  than  is  pre- 
scribed by  the  Act  of  1817.  It  appeared  that  the  defendant  was  a  shop- 
keeper, and  vender  and  retailer  of  spirituous  liquors.  It  was  held  that 
the  Act  of  1834  *was  a  repeal  of  the  Act  of  1817,  as  to  the  offence  r:^oAo 
of  which  the  defendant  was  guilty.  L  "^^^ 

The  Act  of  '39  increases  the  penalty  to  be  paid  by  the  father  of  a 
bastard  child,  from  £60  to  £70.  This  is  in  itself  a  repeal  of  the  former 
statute,  unless  the  Act  of  '39  does  not  cover  the  case  where  "  a  white 

(«)  11  Stat.  16,  §  12.     An. 


222  COLUMBIA,    MAT,    1841.      VOL.  I.  [*340 

woman  shall  be  delivered  of  two  or  more  bastard  children."  If  it  does 
not,  it  cannot  repeal  the  Act  of  '95,  which  in  terms  provides  for  the  case, 
"if  any  white  woman  be  delivered  of  a  bastard  child  or  children." 

I-think,  however,  that  the  Act  of  '39  will,  on  a  fair  construction,  pro- 
vide for  the  same  state  of  things.  (Acts  of  1839,  p.  16.)  The  words  of 
the  Act  are  "if  any  white  woman  be  delivered  of  a  bastard  child." 
These  words  embrace  the  birth  of  one  or  more  children.  For  as  to  each 
the  mother  is  delivered  of  a  bastard  child,  and  the  maintenance  of  a 
bastard  child  is  the  object  sought  to  be  provided  for.  The  person  to  be 
proceeded  against  for  the  penalty,  is  described  in  the  Act  to  be  "  the 
father  of  her  child."  If  there  are  more  than  one,  he  may  fulfil  that  de- 
scription as  to  each,  as  well  as  to  a  single  one.  If  it  should  so  happen, 
that  where  two  or  more  children  are  born  together,  that  they  should  be 
the  offspring  of  different  fathers,  then,  under  the  words  of  this  Act,  each 
father  may  be  indicted.  Under  the  Act  of  '95,  it  would  be  very  doubtful 
whether  that  could  be  done  ;  and  that  doubt,  I  presume,  led  the  Legisla- 
ture of  '39,  to  drop  the  words  "children,"  as  unnecessary.  The  object  of 
the  recognizance,  directed  to  be  entered  into,  is  to  secure  the  penalty  "  for 
the  maintenance  of  the  child."  The  words  may  as  well  mean  each  child, 
when  there  are  more  than  one,  as  a  single  child.  The  only  difference 
between  the  two  Acts,  in  this  respect,  is,  that  in  the  former  Act,  the 
children  born  together  are  to  be  considered  as  one  offence,  for  which  the 
father  answered  jointly,  but  was  subjected  to  the  penalty  of  £60  for  each 
child.  In  this  Act,  the  birth  of  each  child  is  considered  as  the  offence 
for  which  the  father  is  to  answer,  and  the  penalty  is  to  be  secured  sepa- 
rately for  the  maintenance  of  each. 

In  the  argument  here,  it  was  suggested  that  as  to  this  defendant,  this 
Act  ought  to  be  regarded  as  ex  post  facto,  as  the  children  were  begotten 
before  its  passage  But  the  offence,  according  to  the  plain  words  of  the 
Act,  is,  "if  any  white  woman  be  delivered  of  a  bastard  child,"  then  the 
j,joii-|  father  shall  be  *proceeded  against  for  the  maintenance.  Unques- 
^  tionably  the  act,(a)  however  immoral,  is  not  noticed  or  regarded 
as  criminal  until  the  delivery.  That  makes  the  offence  as  to  the  father, 
and  not  anything  which  preceded  it. 

It  is  said  that  this  indictment  is  an  exact  transcript  of  that  on  which 
a  conviction  has  taken  place,  and  hence  that  that  conviction  must  be  a 
bar  to  this  indictment.  This  would  prima  facie  appear  to  be  true  ;  but 
yet  like  all  other  prima  facie  showings,  it  may  be  obviated.  To  sustain 
the  plea  of  "  autrefois  convict,''^  the  crime  must  be  the  same  for  which 
the  defendant  was  before  convicted,  1  Chit.  C.  L.  461.  To  such  a  plea 
the  solicitor  might,  as  to  a  plea  of  autrefois  acquit,  reply  and  take  issue 
upon  the  averments  of  identity.  {Ih.  460,  464.)  Under  these  authori- 
ties the  solicitor  may  reply  to  the  plea  of  autrefois  convict,  that  the 
mother  was  delivered  of  two  children,  and  that  the  former  indictment  and 
conviction  was  for  one  of  them,  and  this  indictment  is  for  the  other.  In 
sncli  replication,  more  certainty  is  necessary  than  in  the  indictment,  and 
therefore  in  it  the  children  should  be  distinguished  by  name,  complexion, 
hair  and  sex,  or  at  least  by  some  of  these  marks  of  separate  identity.  I 
perceive  that  the  solicitor  demurred  to  the  plea,  and  if  we  were,  therefore, 

(a)  7  Rich.  3G5  ;  10  Rich.  366.     An. 


*341]  GIST  ET  AL.  VS.  m'junkin  et  al.  223 

strictly  to  rep^ard  the  pleadings,  we  should  be  obliged  to  sustain  the  de- 
cision of  the  judge  below.  For  there  is  nothing  on  the  indictment  which 
shows  that  this  indictment  is  for  an  offence  different  from  that  set  out  in 
the  former  indictment ;  but  as  the  case  here  was  argued  upon  its  merits, 
and  as  the  object  is  to  settle  a  doubtful  question  of  practice  under  a 
recent  Act  of  the  Legislature,  and  not  to  obtain  an  advantage  by  plead- 
ing, the  case  has  been  and  will  be  considered  as  if  the  proper  fact  had 
been  replied  to  avoid  the  plea. 

It  was  argued  that  separate  recognizances  could  not  be  so  framed  as 
to  provide  certainly  for  the  maintenance  of  each  child.  The  difficulty  iu 
this  case  will  be  avoided  by  distinguishing  the  children  in  the  replication, 
and  in  the  recognizances  which  may  be  hereafter  taken,  if  the  defendant 
should  be  convicted.  In  all  future  cases,  the  indictments  and  recogni- 
zances should  distinguish  each  child  by  name,  complexion,  hair  and  sex, 
or  by  some  of  these  means  of  separate  identity. 

The  motion  to  reverse  the  decision  below  is  granted,  and  the  solicitor 
has  leave  to  withdraw  his  demurrer,  and  to  reply  to  the  plea  o^  autrefois 
convict. 

The  whole  Court  concurred. 


*NATirANiEL  Gist,  et  al.  vs.  Abraham  McJunkin,  et  al.    [*342 

The  slieriff  sold  a  tract  of  land  under  execution,  which  was  purchased  by  a  third 
person,  against  whom  the  owner  subsequently  filed  a  bill  in  Chancery,  to  set 
aside  the  sale  on  the  ground  that  the  execution  was  satisfied.  The  Chancellor, 
upon  examining  the  case,  thought  the  fact  of  satisfaction  was  proved,  and  that 
the  purchase  showed  it ;  he,  however,  referred  it  to  the  commissioner,  to  inquire 
as  to  that  fact,  and  decreed,  if  found  for  the  complainant,  that  the  sale  and  deed 
should  be  set  aside  ;  otherwise,  that  it  should  stand.  Subsequently,  the  parties 
compromised,  and  the  purchaser's  money  and  costs  were  refunded,  and  he,  by 
the  direction  of  the  owner,  J.  T.  McJunkin,  conveyed  the  land  to  J.  A.  McJun- 
kin.    It  was  held, 

That  the  Chancellor's  decree  was  provisional. 

That  the  sheriff's  sale  and  deed  still  subsisted. 

That  the  legal  title  was  still  in  the  alienee  of  J.  A.  McJunkin. 

That  a  sheriff's  sale  under  an  execution  purporting  to  be  satisfied,  wlien  the  sheriff 
has  in  his  office,  at  the  time  of  the  sale,  a  subsisting  execution,  is  not  void ;  and 
the  plaintiff  in  the  subsisting  execution  is  not  entitled  to  have  the  land  re-sold, 
but  is  only  entitled  to  the  proceeds  arising  out  of  the  sale. 

Before  Butler,  J.,  at  Union,  Extra  Term,  18-11. 

This  was  an  action  of  trespass  to  try  titles.  Both  of  the  parties,  plain- 
tiff" and  defendant,  claimed  under  John  T.  McJunkin,  through  sheriff"'s 
sale.  The  evidence  on  the  imrt  of  the  plaintiff,  in  the  first  instance, 
loas  as  folio  10 s  : 

Records  in  the  case  of  Nathaniel  Gist,  administrator  of  Jas.  Diigan,  vs.  Jno.  T. 
McJunkin.  Judgment  signed  28th  April,  1837,  for  $1275  ;  fi.  fa.  1st  May,  1837. 
Entry  on,/j. /a.  by  sheriff.  Levied  on  four  hundred  acres  of  land,  of  J.  T.  McJun- 
kin, more  or  less,  whereon  James  McJiinkin  now  lives.  Deed  from  R.  McBeth, 
sheritY,  to  plaintiff,  dated  14th  September,  1837.  The  deed  describes  the  land,  as 
bounded  by  Thomas  Sorter  and  A.  McJunkin,  and  others,  and  as  the  land  whereon 
John  T.  McJunkin  formerly  lived.     The  foregoing  proceedings  and  judgments  were 


224  COLUMBIA,    MAT,    1841.      VOL.  I.  [*342 

instituted  to  revive  a  judgment  obtained  by  James  Dugan,  in  liis  life  time,  against 
J.  T.  McJunkin  ; yz. /a.  dated  October  16,  1826.  The  plaintiff  here  closed,  having 
proved  a  tresi^ass,  and  defendants  offered  the  folloicing  evidence  of  title  : 

Records  of  Ordinary  vs.  Jno.  T.  McJunkin.  Judgment  dated  2Sth  March,  1826, 
for  $440 :  fi.  Ja.  same  day  ;  levy  of  land  in  controversy,  entered  on^'.  fa. ,  in  April, 
^  1826.     *Deed"from  John  Anderson,  sheritf,  conveying  the  land  to  William  M, 

-l  Thomson,  in  consideration  of  $84.  Besides  the  above,  another  record  of 
Robert  Mahne  vs.  John  T.  McJunkin,  was  introduced.  Judgment,  12th  April,  1833, 
for  $150  ;  entry  of  levy  on  the  same  land  Ijy  sheriff;  deed  from  sheriff,  B.  Johnson, 
to  Abraham  McJunkin,  the  defendant,  dated  10th  December,  1833,  conveying 
three  hundred  and  sixty-seven  acres  of  land,  more  or  less. 

Evidence  in  repli/ : — Proceedings  in  Chancery,  in  the  case  of  John  T.  McJunkin 
vs.  William  M.  Thomson  and  John  Bates,  sheriff.  The  main  object  of  tliis  bill, 
was  to  set  aside  the  sale  to  William  M.  Thomson,  before  mentioned,  upon  the 
ground,  that  tlie  judgment  under  which  the  sale  took  place,  had  been  satisfied 
before  the  sale.  Chancellor  Harper,  at  June  Term,  1829,  heard  the  case  upon  the 
bill  and  answer.  By  his  decree,  which  was  given  in  evidence,  the  Chancellor  was 
satisfied  from  the  evidence  then  before  him,  that  the  proceeds  of  property,  sold 
under  aji./a.,  against  John  T.  McJunkin,  was  applied  to  the  payment  of  that 
judgment,  and  that  if  the  application  in  fact  had  been  made,  the  judgment  was 
satisfied  ;  but  not  having  the  Ji.  fa.  before  him,  he  did  not  make  a  final  decision 
on  the  matter,  but  referred  it  to  the  commissioner,  to  report  whether  or  not  the 
judgment  had  been  satisfied,  and  that  upon  the  coming  in  of  the  report  offering 
that  fact,  the  judgment  should  be  marked  satisfied,  and  the  sale  to  Thomson  set 
aside,  &c.  But  if  it  should  appear,  on  the  reference,  that  the  judgment  had  not 
been  satisfied,  which  was  to  be  made  appear  by  the  defendant  being  the  acting 
party,  then  the  bill  to  be  dismissed  without  cost.  I  have  not  the  decree  before 
me,  but  as  it  is  important,  it  can  be  r^erred  to.  After  the  decree  was  pronounced, 
and  when  I  supposed  it  was  pretty  well  ascertained  that  the  deed  to  Thomson 
would  be  consulted,  tlie  following  arrangements  were  made  by  Thomson  and  two 
of  the  McJunkins,  John  T.  &  Jos.  A. 

William  M.  Thomson,  who  was  sworn  as  a  witness,  gave  this  account  of  the 
transaction — that  either  he  proposed  to  John  T.  McJunkin,  or  McJunkin  made  the 
proposal  to  him,  that  the  money  paid  by  Thomson,  and  the  cost  which  he 
incurred,  should  be  refunded  to  him,  and  tliat  he  should  reconvey  the  land.  For 
■*q44i  *^'®  purpose  of  securing  to  himself  tlie  *money  thus  to  be  refunded,  he  took 
-'  a  confession  of  judgment  from  Jos.  A.  McJunkin,  (son  of  John  T.)  John  T. 
McJunkin,  and  Benjamin  McJunkin,  for  $117.  Thereupon,  John  T.  McJunkin 
presented,  in  his  own  handwriting,  a  paper  purporting  to  be  a  conveyance  of  the 
land  from  Thomson  to  Jos.  A.  McJunkin,  in  consideration  of  $1500,  with  a  clause 
of  general  warranty.  The  witness  refused  to  sign  the  deed,  but  finally  executed 
a  deed  of  the  land  in  John  T.'s  handwriting,  containing  the  true  consideration, 
and  without  clause  of  warranty  to  Jos.  A.  McJunkin.  By  a  memorandum  of  the 
execution,  it  appears  that  the  amount  of  confession  was  paid  to  Thomson  by 
John  T.  McJunkin. 

Josejili  A.  McJunkin,  who  had  conveyed  all  his  interest  in  the  land  to  Abram, 
was  sworn,  and  gav(;  the  following  testimony : 

Tliat  on  the  day  the  land  was  advertised  to  be  sold,  under  the  Malone  judgment, 
he  met  with  liis  uncle  Al>ram,  who  said  to  him,  I  am  afraid  your  title  from 
Thomson  is  not  good.  I  am  willing  to  give  you,  for  the  benefit  of  your  family, 
$120(1  for  the  land,  but  I  am  afraid  1  cannot  get  good  titles  from  you ;  you  must 
forbid  the  sheriff's  sale,  and  I  will  bid  and  take  the  titles  from  the  sheriff.  The 
witness  said  lie  agreed  to  this  arrangement,  and  that  when  the  land  was  offered 
for  sal<-,  he  forliid  {ho  sale,  saying,  that  whoever  bought  the  land,  would  buy  a 
lawsuit.  'I'h.r  land  was  set  down  in  the  sheriff's  books  to  John  Rogers,  but  the 
titles  was  made  to  Aliram  Mt'Junkin.  The  witness  said  that  Abram  never  had  paid 
him  any  tiling  for  the  land;  ho  may  have  paid  the  amount  of  the  Malone 
judgment,  (al)out  $lf)0;)  that  judgment  was  recovered  on  a  joint  and  several  note, 
8ign.-d  by  liis  father  and  himself;  that  lie  was  security  on  note;  and  that  a 
separate  judgment  was  recovered  against  each  maker;  the  land  was  knocked  off 
to  Abram,  or  for  liim,  at  $10,  (it  appeared  here,  that  the  plaintiff  had  got  the  laud 


^3-44] 


GIST   ET   AL.    VS.    m'jUNKIN    ET    AL.  2^5 


conveyed  to  him,  on  a  bid  of  $16.)  The  witness  said,  that  one  Gregory  had 
oflferod  him  $1200  for  tlie  land,  if  he  would  make  him  good  titles.  On  his  cross- 
examination  he  said,  the  money  that  was  paid  to  William  M.  Thomson,  was  his 
own,  althoujfh  his  father  may  have  paid  it.  Benjamin  Gregory  said  he  was 
anxious  to  buy  the  land,  and  would  have  given  $8  or  $10  an  acre  ;  oifered  Jos.  A. 
McJunkin  $1200,  if  he  would  make  good  rights.  On  the  day  *the  land  was  r^oAr 
sold,  under  the  Malone  judgment,  witness  asked  Aljram  about  Jos.  A.'s  '- 
title.  Abram  said  he  did  not  think  it  good,  and  advised  witness  not  to  bid,  or 
that  he  would  involve  himself  if  he  did.  No  one  bid  at  the  sale  but  Rogers,  and 
he  made  but  one  bid.  The  fact  that  the  land  was  represented  to  be  in  dispute, 
made  it  sell  for  less  than  its  true  value  ;  the  land  was  valuable. 

B.  Johnson,  the  sheriff,  said  he  advertised  and  sold  the  land,  without  any  par- 
ticular instructions  from  Malone.  There  was  an  endorsement  on  the  execution  to 
proceed  forthwith,  and  he  proceeded  under  this  instruction  and  the  execution 
itself. 

L.  B.  Geter  heard  Abram  McJunkin  say,  that  the  land  had  been  bid  off  by  Jolm 
Rogers,  but  it  was  for  himself. 

Daniel  Thomas  said  he  came  to  the  sale  to  bid  for  the  land  ;  regarded  it  valuable  ; 
that  just  as  the  sale  was  coming  on,  he  inquired  of  Rogers  whether  there  was  any 
incumbrance  on  the  land.  Rogers  replied,  that  any  one  who  bought  it,  would  buy 
a  law  suit. 

This  evidence  was  objected  to  on  the  part  of  the  plaintiff,  and  admitted  by  me, 
on  the  ground,  that  the  connection  in  the  transaction,  alleged  to  be  fraudulent, 
between  Abram  McJunkin  and  Rogers,  was  abundantly  proved. 

Dr.  Jeter  said,  that  before  the  sale,  he  saw  a  good  deal  of  intercourse  between 
Abram  McJunkin  and  Rogers  ;  they  seemed  to  be  in  constant  conversation,  &c. 
In  going  home  after  the  sale,  he  and  Abram  and  others  in  conversation,  A))ram 
said  he  was  sorry  he  had  bought  the  land.  The  witness  said  the  land  was  worth 
from  $10  to  $1.5  an  acre. 

William  Davis,  heard  the  defendant  say  the  same  thing  at  another  time. 

Jos.  A.  McJunkin,  recalled.  About  seven  days  after  Malone's  sale,  he  made  a 
deed  to  Abram,  in  consideration  of  $1200  ;  no  part  of  which  he  has  received. 

There  wei'e  several  witnesses,  who  said  they  had  often  heard  Abram  McJunkin 
say,  that  the  judgment  of  OrcUnarij  vs.  John  T.  McJunkin,  was  satisfied  before  the 
sale  under  it. 

Evidence  on  the  part  of  the  defendant : — John  Ward  said,  he  saw  a  note  given  by 
Abram  McJunkin,  to  Jos.  A.  McJunkin,  for  $(iOO,  which  witness  regarded  as  part 
payment  of  the  land  ;  saw  it  in  John  T.  McJunkin's  possession  ;  saw  Abrani  sign  a 
note,  to  Mrs.  John  T.  McJunkin,  for  $200,  for  her  dower. 

*  Mr.  Kesler,  said    he  was    present  when  Jos.  A.  executed  the  deed  to  r^o^p 
Abram.     At  the  same  time,  Abram  gave  his  note  for  $G00,  and  paid  some  '- 
money,  but  how  much,  witness  could  not  say.     The  evidence  here  closed. 

Then,  after  full  argument,  the  case  was  submitted  to  the  jur}'.  I  held 
that  Judge  Harper's  decree  was  not  a  final  judgment,  which,  of  itself,  set 
aside  the  sale  of  Thomson."  But  the  question  was  still  open,  whether 
John  T.  and  Jos.  A.  McJunkin,  by  combination,  have  procured  titles  to 
be  made  by  Thomson  to  Jos.  A.,  at  a  less  price  than  the  real  value  of 
the  laud,  with  a  view  to  defraud  John  T.'s  creditors.  This  question  was 
distinctly  submitted  to  the  jury,  with  a  full  explanation  of  all  the  circum- 
stances which  could  effect  either  side.  So  of  the  sale  under  the  Malone 
execution.  This  was  a  question  of  fact,  which  belonged  to,  and  was  sub- 
mitted to,  the  jury. 

What  I  have  said  embraces  all  the  questions  involved  in  the  case  or 
growing  out  of  my  charge.  There  is  no  foundation  for  second  ground  of 
appeal.  I  suffered  the  declarations  of  Abram  McJunkin  to  be  given  in 
evidence,  by  witness  sworn  before  rae,  and  said,  that  although  the  decree 
of  Chancellor  Harper  must  be  received,  nevertheless,  the  evidence  re- 
VoL,  1—16 


226  COLUMBIA,   MAT,    1841.      VOL.  L  [*346 

cited  in  it,  was  not  evidence  received  in  this  case.  This,  however,  was 
unimportant,  as  the  same  evidence  was  given  before  me  of  Abr'am's  decla- 
rations. I  do  not  understand  the  meaning  or  reference  of  the  fifth  ground. 
I  will  not  speak  of  all  my  omissions,  but  I  say,  that  I  never  instructed 
the  jury  not  to  believe  Jos.  A.  McJunkin  ;  for,  on  the  main  points  of 
his  testimony,  I  thought  he  told  the  truth.  The  plaintiffs  did  not  recover 
as  much  land  as  that"  described  in  the  declaration,  their  verdict  was  for 
{he  land  whereon  John  T.  McJunkin  lived,  and  they  can  take  no  more 
than  that  under  a  writ  onmbere  facias  possessionem,  as  it  regards  the 
rent.  The  proof  was  that  defendants  had  been  cultivating  the  land, 
about  forty  acres,  for  five  years ;  and  witness  said,  land  would  rent  from 
$2  to  $3  per  acre.  I  cannot  now  say,  what  was  the  estimate  of  the  jury ; 
they  found  for  the  plaintiffs,  the  land  and  $300  damages.  I  was  willing 
that  the  jury  should  have  found  less  damages,  as  from  Chancellor  Har- 
per's decree,  it  appears  to  me  that  the  McJunkins  had  been  hardly  used, 
in  a  way  that  approached  oppression  ;  and  as  I  said  to  the  jury,  I  wish 
^  -,  they  had  pursued  a  proper  mode  to  relieve  themselves.*  Upon 
-J  the  whole,  my  sympathy  was  with  defendants,  but  I  submitted  the 
case  without  prejudice  to  the  jury. 

The  defendants  appeal,  on  the  following  grounds. 

GROUNDS    OF    APPEAL. 

1.  T3ecause  the  title  of  William  Thomson  being  legal  and  valid,  he  had  a 
perfect  right  to  give  or  convey  the  land  to  whom  he  pleased.  And  Joseph  A. 
McJunkin,  having  paid  his  own  money  for  the  title  of  Thomson,  had  as  perfect 
a  right  as  Thomson.  And  the  Court  erred  in  charging  the  jury  that  they 
might  find  the  conveyance  from  Thomson  to  Joseph  A.  McJunkin,  fraudulent 
and  void. 

2.  Because  the  Court  permitted  what  the  defendant,  A.  McJunkin,  said  in 
the  case  in  Kquity,  of  /.  T.  McJunkin  vs.  Bates  (f-  Thomson,  to  be  given  in 
evidence,  to  defeat  the  title  of  Thomson,  and  consequently,  his  own  title,  when, 
according  to  the  decree  in  the  case,  the  title  was  not  set  aside,  and  is  yet  good 
and  valid,  and  the  Court  charging  the  jury  upon  this  evidence  against  the 
defendants. 

3.  Because  the  purchase  of  A.  McJunkin,  under  the  Malone  judgment,  was 
good  and  valid,  and  the  Court  erred  in  charging  that  the  acts  of  A.  iMcJunkin 
and  J.  A.  McJuidvin,  might  be  considered  fraudulent,  and  vitiate  the  sale, 
when  they  had  no  agency  in  procuring  the  sale. 

4.  liecause  the  Court  permitted  the  declarations  and  advice  of  Mr.  John 
Rogers,  to  be  given  in  evidence  against  the  defendants ;  and  held,  and  took  for 
granted,  that  Kogers  was  the  agent  of  A.  McJunkin  at  the  time  they  were 
made. 

5.  Because  the  character  of  Joseph  A.  McJunkin  was  attacked  by  the 
testimony  of  two  witnesses,  and  the  evidence  of  his  own  deed  ;  and  the  Court 
omitted  cliarging  the  jury  upon  this  part  of  the  case,  or  to  give  them  any 
instructions,  and  said  witness  was  unworthy  of  belief. 

0.  Jiccause  the  defendant,  A.  McJunkin,  is  a  purchaser  for  a  valuable  con- 
sideratioii  from  .1.  A.  McJunkin,  without  notice  of  any  fraud  between  J.  A. 
McJunkin,  J.  T.  McJunkin,  and  William  'I'liomson,  if  there  was  any. 

7,   Jiecauso  tlie  jury  have  not  found  the  land  sued  for,  nor  the  land  described 
in  the  plaintifl's  deed,  and  thoy  have  given  damages  for  the  rent  or  use  of  tlie 
land,  anterior  to  the  time  when  the  plinntiffs  actpiired  a  title. 
*348|       *^'  ^^''^''"^f'  ^'"'  plaintiir,  having  the  oldest  judgment,  will  recover  the 
J   proceeds  of  the  former  saU-s,  and  obtain  tlio  land  also. 

y.  Because  the  verdict  is  contrary  to  law  and  evidence. 


'348] 


GIST    ET    AL.    VS.    m'jUNKIN    ET    AL  227 


Ilcrndon,  for  the  motion — on  the  first  ground.  Title  of  William  M.  Thomson. 
Is  this  title  a  good  one  ?  It  is  contended  that  this  title  is  set  aside  by  Chancellor 
Harper's  decree,  but  by  good  authority,  ho  hoped  to  show  that  it  was  not  set 
aside. 

It  was  not  necessary  for  the  defendants  to  go  on  and  hold  the  reference  under 
Chancellor  Harper's  decree,  but  it  was  the  duty  of  the  complamants  to  do  so ;  the 
omui  was  on  them. 

The  decree  of  the  Chancellor  in  the  bill  in  equity,  was  not  final  between  the 
parties.  There  are  two  kinds  of  decrees  in  equity,  final  and  interlocutory.  And 
this  decree  will  be  found  to  be  interlocutory. 

It  is  immaterial  as  to  the  defence  in  this  case,  whether  the  title  be  in  the  defend- 
ant or  in  others  ;  it  is  sufiicient  to  divest  the  plaintiff  of  his  right,  to  show  a  better 
right  than  his;  one  in  another.     Harrison  vs.  Ilol/is,  2  N.  &  McC.  578. 

2d  Ground.  A  purchaser  for  a  valuable  consideration  has  a  good  title,  though 
the  party  from,  whom  he  purchased  obtained  his  title  by  fraud.  10  John.  185. 
Also,  S.  P.  Com.  Law  Rep.  35. 

Dawkins,  contra.  The  questions  of  law  were  decided  by  the  Court  in  favor  of 
the  defendants,  and  the  only  questions  left  to  the  jury,  were  those  of  facts. 

The  question  for  the  Court  is,  whether  Thomson's  deed  was  a  valid  one  or  not. 

A  man's  declarations  are  admitted,  upon  the  ground  that  he  will  swear  nothing 
against  himself. 

3d  Ground— 12  Wendell  Rep.  41. 

Thomson,  same  side.  We  go  entirely  against  the  title  of  William  M.  Thomson, 
and  declare,  that  by  the  Chancellor's  decree,  Thomson's  title  was  completely  nulli- 
fied.    Cited  McCool  vs.  McClarei/,  Harp.  Rep.  486. 

*A.  McJunkin  was  estopped  by  the  Chancellor's  decree,  and  any  person  r*o_<n 
attempting  to  commence  an  action,  under  Thomson's  deed,  would  be  liable  '■ 
to  attachment  for  a  contempt. 

Thomson,  though  a  defendant  to  the  proceedings  in  Chancery,  in  this  action  his 
position  is  changed,  and  he  becomes  the  actor.  1  Story  Eq.  27  and  28  ;  also,  com- 
mented on  the  case,  Harrison  vs.  Hollis,  relied  on  by  the  opposite  counsel. 

Thomas  Sf  Ashbi/  vs.  Jeter.     1  Hill  Rep.  380  ;  10  .John.  223. 

Herndon,  in  reply.  Obliterate  the  title  of  Abraham  and  Jos.  McJunkin,  and  still 
the  title  of  Thomson  is  good,  and  these  plaintiifs  cannot  recover. 

The  declarations  of  Abraham,  since  the  sale,  cannot  effect  the  title  of  Thomson, 
and  could  not  divest  him  of  his  rights. 

There  was  no  evidence  on  the  trial  of  the  cause  on  the  circuit,  to  attack  the 
validity  of  Thomson's  deed. 

If  the  titles  of  Joseph  A.  and  Abraham  are  void,  it  does  not  vest  the  title  in 
John  T.  McJunkin  again,  while  Thomson's  deed  is  good. 

If  the  sale  of  the  Sheriif,  under  the  Ordinary's  execution,  to  Thomson,  is  not 
good,  the  execution  of  Dugan  was  in  his  hands,  and  that  is  conc(!ded  to  have  been 
a  good  execution,  and  the  recital  of  a  void  execution  is  no  ground  to  elfect  a  sale, 
when  the  Sherifl"  had  a  valid  execution  in  his  office.  Cited  3  M'C.  2(J1  ;  id.  291, 
as  to  damages. 

Curia,  per  O'Neall,  J.  According  to  tlie  view  wliicli  I  take  of  tliis 
case,  the  legal  title  to  the  land  in  dispute,  is  in  the  defendant,  Abraham 
McJunkin,  and  the  plaintiffs  are  not  entitled  to  recover. 

Chancellor  Harper's  decree,  of  June,  1829,  in  the  case  'of  John  T. 
McJunLin  vs.  John  Bates  &  oihem,  was  provisional  merely.  If,  upon 
the  coming  in  of  the  conamissioner's  report,  it  appeared  that  the  execu- 
tion of  the  Ordinary  vs.  John  T.  McJunkin,  (under  which  his  land  had 
been  sold  and  purchased  by  Thomson,)  was  satisfied,  then  the  sale  and 
the  deed  were  to  be  set  aside  ;  l)ut  if  the  fact  did  not  so  appear,  then  the 
bill  was  to  be  dismissed.  No  one  can  pretend  that  such  a  decree  could 
operate  beyond  its  terms.     Its  effect  depends  upon  a  fact,  not  then,  but 


228  COLUMBIA,    MAY,    1841.      VOL.  I.  [*349 

^q;.  „-,  afterwards  to  be,  ascertained,  *If  that  fact  never  was  ascertained, 
'  -l  it  follows,  that  the  decree  can  have  no  effect ;  so  far  as  that  case 
■was  concerned,  none,  save  the  parties  before  the  Court  had  the  right  to 
complain,  if  the  case  rested  at  the  point  to  which  the  decree  reduced  it. 
They  chose,  instead  of  pursuing  the  litigation,  to  compromise.  The 
money  paid  by  Thomson,  on  his  purchase  at  the  sheriff's  sale,  and  the 
costs  which  he  had  incurred  were  secured  to  be  paid  to  him,  by  the  note 
of  Joseph  A.  McJunkin,  John  T.  McJunkin,  and  Benjamin  McJunkin, 
and  thereupon  he,  by  the  consent,  and  indeed  by  the  direction  of,  John 
T.  McJunkin,  conveyed  the  laud  to  his  son,  Joseph  A.  McJunkin. 

The  legal  effect  of  this  arrangement,  was  the  same  as  that  which  would 
result  from  a  discontinuance  at  law.  It  was  a  withdrawal  of  the  case  iu 
equity,  while  something  yet  remained  to  be  done,  in  order  to  ascertain 
and  fi.\  the  rights  of  the  parties. 

This  left  the  sheriff's  sale  and  deed  to  Thomson,  a  subsisting  and  legal 
divestiture  of  the  estate  of  John  T.  McJunkin.  Until  they  are  set  aside 
for  fraud  proved,  and  not  merely  conjectured,  we  are  bound  to  give  them 
effect.  In  general,  a  debtor  is  the  only  one  who  can  complain  about  a 
fraud  committed  on  his  right,  by  a  sale  under  execution.  Still,  if  he  was 
a  party  consenting  to  a  fraudulent  sale  of  his  property  by  the  sheriff,  his 
creditors  might  have  relief  against  it.  (a)  The  ground  on  which  the  deed 
to  Thomson  was  assailed  in  equity,  was,  that  the  execution  under  which 
the  sheriff  sold,  was  satisfied.  This,  if  trne,  and  there  was  no  other  sub- 
sisting execution  in  the  sheriff's  office  at  the  time  the  land  was  sold, 
would  render  the  sale  void ;  and  it  is  possible,  if  the  debtor  did  not  think 
proper  to  question  such  a  sale,  that  his  creditors,  having  no  other  remedy, 
might  avail  themselves  of  the  objection. 

But  certainly  these  plaintiffs  do  not  occupy  that  position.  The  judg- 
ment under  which  they  now  claim  was  recovered  on  a  judgment  in 
favor  of  James  Diigan  against  John  T.  McJunkin,  on  which  there  was 
an  execution  lodged  in  the  sheriff's  office,  on  the  16th  October,  1826. 
The  sheriff's  sale  to  Thomson  was  subsequent ;  and  hence  the  sale  would 
be  referred,  if  the  ordinary's  execution  was  satisfied,  to  Dugan's  execu- 
tion, and  his  judgment  would  be  entitled  to  the  proceeds  of  the  sale,  and 
not  to  a  right  to  set  up  the  satisfaction  of  the  elder  execution,  and  claim 
♦3511  ^^  re-sell  the  land.  This,  it  seems  *to  me,  leaves  the  plaintiffs 
-^  without  any  ground  on  which  to  stand.  For  McJunkin's  title 
being  conveyed  to  Thomson,  and  they  being  so  situated  in  the  deriva- 
tion of  their  title  that  they  cannot  set  up  the  supposed  satisfaction  of  the 
execution,  under  which  the  sheriff  sold  and  conveyed,  it  would  seem  to 
follow  that  the  sale  to,  and  purchase  by  them,  of  the  interest  of  John  T. 
McJunkin,  in  the  land,  was  the  sale  and  purchase  of  nothing.  But  it  is 
said  that  John  T.  McJunkin  paid  his  son's  note  to  Thomson.  If  this 
be  so,  still  it  ca!i  have  no  effect  to  re-vest  in  him  a  title  to  lands  of  which 
he  had  legally  been  divested.  That  could  only  be  done  by  deed.  If  the 
whole  arrangement  between  him  and  his  son  had  been  fully  proved  to  be, 
that  he  should  pay  the  money  to  Thomson,  and  that  the  son  sliould  hold 
the  land  for  his  use,  the  utmost  which  could  be  said  of  it  would  be  that  it 
was  a  use  unexecuted  by  the  statute,  and  remained,  therefore,  a  mere  trust 
in  equity,  which  this  Court  could  not  notice.  Harrison  vs.  Hollis,  (2 
N.  k  McC.  578.) 

(a)  3  Rich.  119  ;  1  Rich.  21 ;  1  Hill,  415.     An. 


*351]  TAYLOR  VS.  m'lean.  229 

These  views  m.ake  it  unncessary  to  notice  very  particularly  the  subse- 
quent matters  in  this  case.  For  Joseph  A.  McJunkin  haviiif^  the  le<?al 
estate  in  the  land,  could  convey  it  to  Abraham  McJuiikin,  and  his  title 
would  be  only  incumbered  by  the  trust  (if  in  fact  there  was  any,)  in  favor 
of  John  T.  McJunkin.  He  alone  can  avail  himself  of  that.  There 
could  be  no  fraud  on  the  rights  of  creditors  in  the  sale  under  Malone's 
judgment.  For  John  McJunkin  had  then  no  estate  in  the  land.  But 
upon  the  facts,  I  confess  that  I  am  unable  to  discover  any  fraud  on  the 
part  of  Abraham  McJunkin.  He  told  his  nephew,  on  the  day  on  which 
the  land  was  sold  under  the  Malone  judgment,  that  he  was  afraid  his 
title  to  the  land  was  not  good,  but  as  he  was  willing  to  give  him  $1200 
for  the  benefit  of  his  family,  he  directed  him  to  forbid  the  sale,  and  he 
would  do  so  and  take  the  sheriff's  title.  This  was  an  indirect  mode  of 
legalizing  a  doubtful  title,  but  still  a  valuable  money  consideration  was 
to  be  paid,  and  was  paid.  For  although  he  paid  Joseph  A.  personally, 
nothing,  yet  he  paid  the  Malone  judgment,  debt,  interest,  and  costs, 
exceeding  $200. 

Wood  proved  notes  given  by  Abraham,  on  account  of  the  land,  to  the 
amount  of  $800  ;  and  Kesler  proved  that  when  the  deed  was  executed 
by  Joseph  A.  to  Abraham,  that  a  note  of  $600  was  given  by  Abraham, 
and  some  money  paid.  ^Taking  all  these  facts  together,  I  should  r^tjoKc? 
infer  that  the  consideration  of  the  $1200  was  fully  paid  ;  and  this  ^ 
conclusion  is  much  strengthened  by  the  fact  that  John  T.  McJunkin 
lived  upon  the  land  some  years  after  Abraham  bought,  and  then  removed 
to  the  West,  leaving  him  in  the  sole  possession  and  enjoyment.  Neither 
he,  nor  Joseph  A  McJunkin,  has,  so  far  as  we  are  informed,  complained 
of  any  fraud  upon  them,  as  committed  by  Abraham  McJunkin,  and  if 
the  case  stood  alone  upon  the  facts,  I  should  be  slow  to  conclude  that 
the  consideration  of  $1200  had  not  been  paid.  But  upon  the  law,  for 
the  reasons  which  I  have  previously  given,  I  am  clear  the  plaintiffs  are 
not  entitled  to  the  verdict  which  has  been  found  for  them. 

The  motion  for  a  new  trial  is  granted. 

Gantt  and  Richardson,  JJ.,  concurred. 


Laura  S.  Taylor  vs.   John  McLean. 

One  being  the  agent  of  another,  drawing  a  promissory  note,  and  signing  it  with 
his  own  name,  thus,  "  Daniel  McLean  for  John  McLean, "  it  was  held,  that  it  was 
the  note  of  "  Daniel  McLean,"  the  agent,  and  not  the  note  of  the  principal. 

Before  O'Neall,  J.,  Richland,  Spring  Term,  1841. 

This  was  an  action  of  assumpsit  on  a  note  of  hand,  signed  "Daniel 
McLean,  for  John  McLean."  It  seems  from  the  evidence,  that  Daniel 
McLean  was  the  agent  of  John  McLean.  A  motion  was  made  for  non- 
suit, and  sustained  by  the  Court,  on  the  authority  of  the  case  of  Fash  vs. 
Ross,  (2  Hill,  294.) 

The  plaintiff  moved  the  Appeal  Court  to  set  aside  the  nonsuit,  on  the 
ground  that  Daniel  McLean,  who  signed  the  note  thus  "  Daniel  Me- 


230  COLUMBIA,    MAT,    1.841.      VOL.  I.  [*352 

Lean,  for  John  McLean,"  was  proved  to  be  the  agent  of  John  McLean, 
^Qf-g-,  authorized  to  make  such  note,  and  *to  purchase  provisions  for  his 


^353] 


stage  line,  and  that  John  McLean  was  bound  by  his  signature. 


W.  F.  De  Satissure,  for  the  motion,  cited  Fash  vs.  Ross. 

An  agent  may  make  himself  liable  for  his  principal,  but  the  principal  is  liable 
for  his  agent's  acts.  Cited  Riley's  L.  Cases,  78,  Waddell  vs.  Mordecai ;  Prior  vs. 
Colter,  1  Bail.  517;  2  Bail.  55,  Allen  vs.  Brazier;  11  Mass.  T.  Rep.  97  ;  2  Liv. 
Agen.  245  ;  2  East.  Rep.  142  ;  6  Term.  Rep.  146. 

Black,  contra.  Whose  note  is  it  ?  It  is  not  a  joint  note.  It  is  either  one  or  the 
other. 

It  may  be  supposed  that  defendant  might  have  placed  funds  in  the  hands  of  his 
agent  to  pay,  and  the  agent,  from  this  view,  alone  is  liable. 

He  relied  on  reason  and  common  sense. 

One  may  be  employed  to  buy  a  pair  of  horses,  and  the  horses  may  be  for  de- 
fendant's use,  yet  defendant  may  have  given  money  and  the  agent  choose  to  give 
his  note — whose  note  is  it  ? 

Per  Curiam. — The  case  of  Fash  vs.  Boss,  (2  Hill,  294,)  is  conclusive 
of  the  case  before  us.  We  are  net  disposed  now  to  question  the  authority 
of  that  case. 

The  motion  is  dismissed. 

The  whole  Court  concurred. 

See  2  McM.  402,  Vai-num  vs.  Evans;  Robertson  vs.  Pipe,  in  Errors,  1  Rich.  501, 
overruling  this  case,  and  also  Fash  vs.  Ross,  and  Moore  vs.  Cooper,  1  Sp.  57.     An. 


*354]         "John  Porter  vs.  Lucy  and  John  Kennedy. 

The  possession  contemplated  by  the  Statute  of  Limitations  must  not  only  be  noto- 
rious and  definite  at  one  jjeriod,  but  it  must,  in  some  form,  be  continuous, 
during  the  statutory  time  :  that  is,  it  should  be  definitely  used,  for  some 
purpose,  for  ten  years. 

Although  ' '  possessio  pedis'' '  does  not  require  actual  occupancy,  it  implies  enclosure, 
and  use  of  the  grounds  enclosed. 

Tlie  enclosing  and  sowing  down  a  small  turnip  patch  on  a  tract  of  land,  and  occu- 
pying it  but  for  one  year,  and  occasionally  cutting  and  hauling  from  it  firewood 
an<l  other  timber,  will  not  be  sufficient  to  defeat  another,  or  give  a  title  to  land, 
under  the  Statute  of  Limitations. 

Before  Butler,  J.,  at  Union,  E.xtra  Term,  18  U. 

Tliis  was  an  action  of  trespass  to  try  titles,  and  is  fully  explained  by 
the  rcj)ort  of  his  Honor. 

The  i)lainliir  claimed  under  John  Norvell,  and  had  a  regular  title  from 
him.  The  defendants  are  the  widow  and  child  of  Benjamin  Kennedy,  and 
entitled  to  his  lands.  Li  1817  or  1818,  Benjamin  Kennedy  and  Norvell 
made  an  exchange  of  lands.  Norvell  was  to  have  a  part  of  a  grant  of 
land  to  Wm.  Kennedy,  (the  father  of  Benjamin,)  lying  near  to  his  house, 
about  eight  and  a  lialf  acres,  which  he  had  enclosed  at  tlie  time  of  the 
exchange,  and  wiiicli  he  cultivated  till  it  was  worn  out.  Kennedy  was  to 
have,  in  lieu  thereof,  about  forty  acres,  being  almost  a  mile  from  Norvell's 
house,  and  almo.st  a  iialf  mile  from  Kennedy's,  and  adjacent  to  the  main 
tract  of  land  on  which  Kennedy  resided,     llicliard  Thomson,  a  surveyor. 


*354]  PORTER   VS.    KENNEDY.  231 

was  called  on  by  both  parties,  as  he  and  two  other  witnesses  said,  to  lay 
oif  to  Kennedy  his  land.  A  line  was  run  at  the  time,  which  the  Kenne- 
dys have  regarded  as  their  boundary  ever  since,  always  claiming  the  land 
below  it.  Benjamin  Kennedy,  in  his  lifetime,  took  no  actual  possession 
of  this  forty  acre  piece,  but  occasionally  cut  firewood  on  it.  About  1824, 
Benjamin  Kennedy  died.  In  1826,  the  defendant,  his  widow,  under- 
standing that  Norvell  intended  to  claim  the  land  notwithstanding  the 
exchange,  sent  her  negroes  and  fenced  in  and  sowed  down  in  turnips 
about  one-quarter  of  an  acre  of  the  land,  with  the  avowed  design  of 
asserting  her  title  and  acquiring  actual  possession  thereon.  No  turnips 
or  other  crop  was  afterwards  planted,  but  the  enclosure  remained,  and 
part  of  the  rails  are  there  now,  or  were  there  when  the  land  was  resur- 
veyed  in  *this  case.  Mrs.  Kennedy  has  continued  to  cut  and  (-^okk 
haul  wood  from  the  premises  ever  since  the  death  of  her  husband,  '- 
and  has,  during  that  time,  regarded  the  land  as  her  own,  never  having 
been  interrupted  in  the  enjoyment  of  it  till  this  action  was  brought,  and 
after  she  had  commenced  to  make  a  permanent  clearing  on  the  place. 
Years  after  the  turnip  patch  was  enclosed,  the  tract  of  land  on  which 
Norvell  lived  was  sold  at  sheriff's  sale.  The  sheriff's  deed  does  not 
exclude  in  terms,  this  land,  now  in  contention,  but  conveys  all  Norvell's 
land  in  hand,  in  a  grant  to  Huger,  which  includes  this.  The  part  that 
Norvell  got  on  the  exchange,  he  held  long  enough  to  give  him  a  title  by 
the  statute  of  limitations  ;  and  the  question  of  law  was  whether  Mrs.  Ken- 
nedy had  such  a  possession  as  would  give  her  a  title  to  the  part  claimed 
by  her  :  that  is,  whether  she  had  taken,  by  enclosing  the  turnip- patch, 
such  a  possession  as  should  be  regarded  a  disseisen  of  Norvell,  and 
whether  it  was  continued  long  enough  by  the  enclosure  remaining  on  it, 
and  by  her  continuing  to  cut  and  haul  away  firewood,  as  to  bar  the  right 
of  those  claiming  under  Norvell. 

Norvell  was  sworn  as  a  witness,  and  declared  that  he  never  had  made 
an  exchange  with  Benjamin  Kennedy,  in  his  lifetime,  but  said  that  Ken- 
nedy was  to  give  him  forty  acres  for  that  which  was  laid  off,  or  pay  him 
money,  and  that  his  taking  the  part  adjoining  his  own  house  was  no  part 
of  the  bargain.  In  this  statement,  he  was  contradicted  by  his  own  admis- 
sion, made  at  the  time  the  line  was  run,  as  well  as  his  repeated  declara- 
tions afterwards ;  but  whether  the  line  had  been  run  by  his  consent,  and 
for  the  purpose  stated  by  Thomson,  and  other  witnesses,  was  a  question 
which  I  submitted  to  the  jury,  with  perhaps  a  distinct  intimation  that  I 
did  not  think  much  importance  was  to  be  attached  to  Norvell's  testimony, 
on  the  facts  deposed  to  by  him.  I  thought  it  was  very  evident  from  the 
time  the  line  was  run,  that  the  Kennedys  regarded  it  as  a  color  of  title 
indicating  the  extent  of  their  claim  and  possession  ;  and  the  real  ques- 
tion in  the  case  is,  was  there  such  a  possession  as  to  give  title  to  the  line  ? 
I  instructed  the  jury  that  they  might  come  to  that  conclusion,  if  they 
thought  the  possession  in  the  first  instance  was  so  notorious  as  to  give 
Porter  notice  of  it  at  tlie  time,  and  was  continued  under  such  circum- 
stances as  to  give  the  i)laintiff  the  same  notice  of  a  deliberate  design  to 
claim  the  land  on  the  part  of  Mrs.  Kennedy.  She  *took  posses-  r*o-/. 
sion  fourteen  years  ago,  and  has  continued  to  use  the  land  ever  since,  ^ 
by  cutting  tire-wood  on  it. 

The  jury  found  for  the  defendants.     I  cannot  say  that  I  am  entirely 


232  COLUMBIA,    MAY,    1841,      VOL.  L  [*356 

satisfied  with  the  law,  though  I  am   entirely  so  with  the  justice  of  the 
proceedings. 

The  plaintiff  appeals,  on  the  grounds  : 

1.  Because  the  Court  held  that  the  possession  of  defendants,  or  rather  the 
trespass  of  the  defendants,  was  sufficient  to  give  title  against  the  plaintiff,  and 
those  under  whom  he  claimed. 

2.  Because  the  question  whether  the  contract  to  exchange  lands  between 
John  Norvell  and  Benjamin  Kennedy,  was  ever  fulfilled  by  Kennedy,  was  not 
submitted  to  the  jury. 

3.  Because  tke  verdict  was  contrary  to  law  and  evidence. 

Herndon,  for  the  motion.  The  running  of  the  land  by  a  surveyor  is  not  a  title. 
The  party  must  recover  by  adverse  possession. 

A  party  clearing  a  small  turnip  patch  in  a  remote  part  of  the  land,  and  using  it 
only  for  one  year,  and  then  abandoning  it,  is  not  possession. 

The  running  of  land  by  a  surveyor,  and  the  cutting  of  timber  in  the  way  in 
which  these  parties  did  it,  will  not  confer  a  title  by  the  statute  of  limitations. 

What  kind  of  possession  is  necessary  to  give  title  by  statute  of  limitation  ? 

Cited  2  N.  &  McC.  343  and  544 ;  2  Johns.  Rep.  230 ;  10  Johns,  do.  477  ;  4  Mass. 
T.  Rep.  418-19  ;  2  Jolui.  Rep.  again,  230. 

Kennedy's  land  was  contiguous  to  the  forty  acres  taken  in  exchange  from 
Norvell,  and  as  Norvell  was  in  actual  possession  of  the  eight  and  a  half  acres, 
the  law  woiild  conclude  that  Kennedy  was  equally  in  actual  possession  of  the 
forty  acres. 

DawJcins,  contra.  Would  Norvell  have  been  barred  by  the  statute  of  limita- 
tions ?     If  so,  then  the  verdict  will  be  sustained. 

There  was  a  distinct  purpose  in  the  defendant  to  assert  her  rights  to  the  land, 
and  her  occupying,  and  the  notoriety  of  her  possession,  was  of  that  character 
^or.'ji  which  would  place  the  *party  on  his  guard,  and  show  him  that  there  was  a 
-'  claim  adverse  to  his.  ^ 

If  defendant's  possession  was  good  against  Norvell,  would  it  not  he  good  against 
those  claiming  under  the  sheriff's  deed  ? 

Curia,  per  Butler,  J.  In  1826,  the  defendant,  with  a  view  of  asser- 
ting her  riglit  to  the  land,  cleared  and  sowed  down  the  turnip  patch 
descril)ed,  and  thereby  acquired  such  a  ])ossession  as  might  well  be 
regarded  a  disseisin  of  Norvell,  and  a  sufficient  origin  of  a  good  title  in 
herself.  This  disseisin  and  possession  could  not,  however,  ripen  into  a 
title  without  ten  years  continuous  and  open  use  of  the  land.  The  pos- 
session contemplated  by  the  statute  of  limitations,  itiust  not  only  be 
notorious  and  definite  at  one  period,  but  it  must  in  some  form,  be 
continuous  during  the  statutory  time.  That  is,  it  should  be  definitely 
used  for  some  purpose  for  ten  years. 

Although  pusHessio  pedis  does  not  require  actual  occupancy,  it 
im])lies  enclosure,  and  use  of  the  ground  enclosed.  I  will  not  undertake 
to  indicate  in  what  way  it  should  be  used;  in  general,  it  sliould  be  cul- 
tivated, or  perhaps  it  niigiit  bo  sufiicient  that  it  should  be  used  for 
paslure.  It  is  sutficient  to  say  tliat  defendant  was  in  possession  of  this 
land  but  for  one  year,  which  could  not  avail  her  in  defeating  the  rights 
of  any  of  the  parties  interested  in  it.  As  against  the  purcliaser  at 
sherilV's  sale,  or  the  plaiutilf,  there  was  no  such  trespass  by  possession, 
as  to  entitle  cither  of  them  to  an  action  to  try  titles.  Until  the 
trespass  had  been  committed  for  which  this  action  was  brought,  the 
plaintiff's  title  was  not  put  in  jeopardy,  and  he  was  not  bound  to  sue, 
and  of  course,  as  long  as  he  had  no  cause  of  action,  defendant  had  no 


*357] 


PARIS   VS.    WADDELL.  233 


foundation  of  title.  The  cutting  and  hauling  of  timber  by  defendant, 
could  not  effect  a  divesture  of  plaintiff's  title,  according  to  our  adjudica- 
tions. According  to  these  views,  the  plaintiff  must  have  a  new  trial,  and 
the  motion  is  therefore  granted. 

Richardson,  O'Neall,  and  Evans,  JJ.,  concurred. 

Gantt,  J.,  dissenting.  I  do  not  concur  in  this  opinion.  Norvell  and 
Kennedy  made  an  exchange  of  lands.  Norvell  took  possession  of  the  lot 
■which  he  took  in  exchange,  and  held  possession  long  enough  to  give  him 
title  by  possession.  *Kennedy  exercised  ownership  over  the  land  r^g^g 
he  took  in  exchange  for  the  lot.  A  small  spot  was  cleared  and  '- 
fenced  for  a  turnip  patch. 

I  think,  under  all  circumstances,  a  title  by  construction,  may  well  pass 
to  Kennedy,  &c. 

See  Infra,  447  ;  6  Rich.  62 ;  9  Rich.  27.     An. 


Henry  Paris  vs.  Edmund  Waddell. 

In  an  action  on  the  case,  where  the  facts  as  to  probable  cause  are  not  disputed,  a 
Judge  may  take  upon  himself  to  say  what  is,  and  what  is  not,  probable  cause. 
But  where  the  facts  are  contested,  probable  cause  becomes  a  mixed  question  of 
law  and  fact,  to  be  decided  by  the  jury,  under  the  instructions  of  the  presiding 
Judge. 

Before  Butler,  J.,  at  Greenville,  Fall  Term,  1840. 

This  was  an  action  on  the  case,  for  malicious  prosecution.  The 
alleged  cause  of  action  was,  that  defendant  caused  plaintiff  to  be  appre- 
hended for  a  criminal  participation,  with  his  own  slaves,  in  stealing  a  hog 
of  the  defendant.  The  history  of  the  case  will  indicate  its  character. 
Long  branch  runs  through  swamp  and  forest  lands  that  are  a  common 
range  for  hogs.  The  plaintiff  lives  about  three  miles  from  it,  and 
defendant  one.  On  the  6th  of  March,  1839,  the  plaintiff,  an  old  man 
about  eighty-four  years,  old,  borrowed  a  cart  from  his  neighbor,  Mrs. 
Townes,  and  sent  two  of  his  own  negroes.  Bob  and  his  son,  with  it  into 
the  woods,  to  catch  and  bring  home  some  wild  hogs  which  he  supposed 
he  had  a  right  to.  One  of  Mrs.  Townes'  negroes  was  also  along. 
Whilst  the  negroes  were  in  the  swamp,  a  Mr.  Dean  was  passing  along, 
and  hearing  dogs,  went  to  the  place  where  they  were  barking.  He  found 
Bob  there,  standing  by  a  hog  that  had  been  caught  and  tied,  the  other 
two  negroes  being  at  some  distance  off.  Whilst  the  witness  was  talking 
to  Bob,  a  sow  with  some  pigs,  nearly  large  *enough  to  be  weaned  [-4:050 
came  up  following  his  horse's  tracks,  and  after  smelling  the  horses  L 
legs,  the  sow  went  off  rooting  Bob  remarked  that  the  sow  was 
unmarked,  and  that  he  should  catch  her.  The  witness  told  him  not  to 
do  so,  that  she  belonged  to  Waddell.  Bob  said  that  he  had  been 
informed  that  it  was  lawful  to  take  up  in  the  woods  any  hog  that  was 
unmarked,  over  six  months  old.  Witness  again  told  him  that  he  had 
seen  the  sow  and  pigs  at  the  defendant's,  and  he  was  confident  they 


234  COLUMBIA,    MAY,    1841.      VOL.  I.  [*359 

belonged  to  hira.  Bob  hallooed  for  the  other  negroes,  and  told  them  to 
go  on  and  look  for  hogs ;  that  he  would  be  on  presentl3\  The  witness 
went  off,  and  in  a  short  time  heard  hogs  squeal  and  dogs  bark ;  went  to 
the  place  and  found  they  had  caught  this  unmarked  sow.  Other  hogs 
coming  up,  the  dogs  let  her  go,  but  by  the  direction  of  Bob,  she  was 
again  caught.  The  witness  went  immediately  to  defendant's  and  told 
him  all  he  had  seen.  The  defendant  asked  him  to  go  ov^r  with  him  to 
Paris's,  saying  that  was  not  the  first  of  his  hogs  that  had  been  taken,  and 
that  he  would  not  submit  to  it  any  longer.  When  Waddell  and  witness 
got  to  Paris's  he  was  feeding  the  sow  in  a  pen,  while  his  negroes  were 
altering  the  other  hog.  Waddell  recognized  his  sow,  and  said  to  Paris, 
you  ought  not  to  let  your  negroes  go  in  the  woods  so  far  from  home  to 
catch  hogs  ;  you  have  got  one  of  my  hogs  in  the  pen,  and  it  is  not  the 
first  time  the  thing  has  happened,  and  if  you  don't  let  my  hog  loose 
immediately,  I  will  have  you  indicted.  The  witness  said  Waddell  was 
in  an  ill  humor,  and  rode  off.  The  Monday  after,  (and  while  the  sow 
■\vas  in  the  pen,  for  she  was  not  turned  out  for  a  week,)  the  defendant 
went  before  Richard  Thurston,  a  Justice,  and  detailed  all  the  circum- 
stances of  the  case  ;  and  made  the  following  affidavit : 

"  That  he  had  just  reason  to  believe  that  Henry  Paris  had  in  his  pos- 
session a  hog  belonging  to  him,  the  said  Waddell ;  that  said  Paris's 
negroes,  Bob  and  Hense,  stole  said  hog,  and  carred  it  to  Henry  Paris's 
and  there  had  it  in  pen,  said  Henry  Paris  knowing  it."  Upon  this,  the 
Justice  issued  a  warrant  for  Paris  and  his  negroes.  Paris  was  arrested 
and  gave  bail.  The  negroes  were  subsequently  arrested  ou  another  war- 
rant, and  tried  before  Justices  and  Freeholders  for  stealing  the  hog. 
The  negroes  were  acquited. 

*sroi  *Two  or  three  members  of  the  court  were  sworn,  who  said  they 
-'  did  not  think  there  was  any  just  grounds  to  charge  the  negroes 
with  a  larceny.  The  justice,  however,  Thurston,  thought  the  negroes 
ought  to  have  been  punished.  The  warrant  against  Paris  was  returned  to 
the  solicitor,  who  entered  thereon  a  vol  pros.  An  order  discharging 
Paris  from  his  recognizance  was  obtained,  and  this  action  commenced. 
The  jilaintiff  proved  an  excellent  character  ;  and  that  he  had  sent  the 
negroes  openly  into  the  woods  with  the  cart ;  that  he  kept  the  sow  for 
some  days  in  the  pen,  and  had  her  examined  by  some  of  his  neighbors, 
who  gave  it  as  their  opinion  that  she  was  a  wild  hog.  The  plaintiff  also 
proved,  that  on  the  trial  of  the  negroes,  defendant  had  said  to  some  of 
the  i)ersous  present,  that  all  the  fat  hogs  in  Long  branch  belonged  to 
I*aris  ;  and  had  said  that  was  not  the  first  time  that  his  hogs  had  been 
taken  by  Paris's  people.  The  defendant  introduced  evidence  to  show, 
that  ])]aiMtiirs  negroes  were  under  little  or  no  control  or  discipline.  A 
Mr.  Magnis  was  sworn,  who  said  that  a  year  or  two  ago,  he  had  been 
hired  by  Mrs.  Towncs  to  go  into  Long  branch  and  search  for  hogs  ;  that 
he  anil  Mrs.  Townes  negroes  had  cauglit  and  killed  two  hogs,  one  of  which 
turned  (»ut  to  belong  to  a  Mr.  Andrew  Young,  who  came  into  the  woods 
and  took  it  oil',  having  told  the  witness  and  negro,  that  the  otlicr  belonged, 
from  tiie  murk,  to  Waddell.  After  advising  with  some  persons,  the  wit- 
ness, Magnis,  carried  the  hog  to  Paris,  where  he  was  living,  and  asked 
him  to  take  half,  which  Paris  did  ;  both  agreeing,  that  if  the  hog  should 
ever  be  claimed  by  any  one,  they  would  pay  for  it.     They  did  not,  how- 


*360]  PARIS   vs.    WADDELL.  235 

ever  send  word  to  Waddell,  particularly,  that  they  had  divided  the  hog, 
which  was  said  to  be  of  his  inarlv. 

The  case  went  to  the  jury,  and  I  charged  them  on  the  general  prin- 
ciples of  tlie  law — saying,  that  if  the  facts  were  undisputed,  it  was  the 
duty  of  the  judge  to  say,  whether  probable  cause  had  been  shown,  or  the 
absence  of  it.  That  when  the  facts  were  contested,  as  they  were  here,  in 
in  tiiis  case,  the  case  must  go  to  the  jury,  with  such  remark  as  the  judge 
might  think  proper  to  make.  That  I  thought  the  conduct  of  the  negroes 
reprehensible  ;  and  to  say  the  least  of  it,  they  had  committed  a  censur- 
able trespass  ;  for  there  was  no  doubt  but  the  sow  belonged  to  plaintiff, 
and  that  they  had  been  *api)rised  of  it ;  that  although  defendant  r^on-i 
had  no  sufficient  cause  to  charge  felony  against  the  negroes,  there  •- 
was  some  excuse  for  it ;  but  that  where  the  defendant  had  gone  and 
charged  the  master  with  a  criminal  participation  in  the  guilt  of  the  slaves, 
as  I  thought  he  had  done,  by  the  terms  of  his  affidavit,  I  thought  he  had 
gone  too  far ;  uidess,  indeed,  he  had  good  reasons  to  believe  that  Paris 
knew  the  hog  to  be  his,  the  defendant's,  when  the  negroes  carried  it  home. 
That  if  Paris  had  been  informed  fully,  by  the  negroes,  of  all  that  had  oc- 
curred between  them  and  Dean,  it  was  his  duty  to  have  sent  for  Waddle, 
or  to  send  word  to  him,  &c.  But  that  if  Paris  believed  that  the  negroes 
bad  brought  hoine  a  wild  hog,  to  which  he  had  any  right  or  claim,  he 
was,  in  fact,  guilty  of  no  offence  in  having  the  hog  put  in  his  pen  ;  and 
that  Waddell  should  have  made  diligent  inquiry  as  to  the  facts  of  the 
case,  before  he  took  out  the  warrant.  That  the  criterion  in  such  a  case, 
should  not  be,  what  would  a  kind  and  generous  neighbor  have  done,  (for 
such  an  one,  no  doubt,  would  have  forborne  any  proceeding  of  a  criminal 
nature.)  but  that  the  question  should  be,  what  might  a  reasonable  man 
have  done  under  the  circumstances  ?  Was  there  ground  for  suspicion  to 
any  mind  not  blinded  by  malice  or  misled  by  prejudice  ?  That  if  there 
were  just  grounds  for  suspicion,  at  the  time  that  Waddell  made  the  charge, 
he  might  be  excused  ;  but  if  there  were  no  such  grounds  of  suspicion, 
against  Paris,  to  an  ordinary  mind,  the  jury  should  find  a  verdict  against 
him.     Verdict  for  the  defendant. 

GROUNDS    OF    APPEAL. 

1.  That  his  Honor,  the  presiding  Judgo,  should  have  decided  the  question  of 
probable  cause,  as  a  question  of  law,  and  not  have  left  it,  as  he  did,  as  a  mere 
question  of  fact  to  the  jury. 

2.  'I'hal  at  any  rate,  the  question  of  probable  cause,  as  a  mixed  question 
of  law  und  fact,  should  have  been  decided  by  his  Honor,  in  alternative  views 
of  the  facts,  leaving  to  the  jury  the  application  of  the  law  to  the  facts,  as  they 
might  liave  been  found  ;  whereas,  the  question  of  probable  cause  was  left  to 
the  jury,  as  much  as  the  question  of  damages,  without  any  instruction  to  the 
jury  of  the  peculiarities  of  this  question. 

3.  The  Judge  in  his  charge  said,  that  if  the  jury  supposed  ^defendant  (*qfi9 
regarded  the  conduct  of  the  negroes,  (mentioned  in  the  evidence,)  as  '-  " 
larceny,  that  might  constitute  probable  cause. 

4.  There  was  no  probable  cause  proved. 

5.  In  addition  to  the  want  of  probable  cause,  express  malice  was  proved 
against  the  defendant. 

G.  iiecause  the  verdict  for  defendant,  is  against  the  law  and  facts  of  the  case. 

Toirneg,  for  the  motion.  From  examination  of  all  the  authorities,  the  two  first 
grounds  are  sustainable. 


236  COLUMBIA,    MAT,    1841.      VOL.  I.  [*362 

There  was  no  conflict  in  the  facts  of  the  case,  and  it  was  the  proper  province  of 
the  Judge  to  decide  the  question  of  probable  cause,  either  as  taken  in  the  first  or 
second  ground. 

The  jury  are  not  capable  of  discriminating. 

Probable  cause,  a  question  of  law.  Cited  Taylor  vs.  Cooper  and  wife,  2  Const. 
Rep.  208:  Lipjord  xs.  McCollwn,  1  Hill,  82;  2  Selwyn  N.  P.  1061  ;  1  Term.  Rep. 
505  ;  Bull.  N.  P.  14 ;  English  vs.  Cleary,  3  Hill,  279  ;  Douglass  vs.  Strong,  2  R. 
Dig.  116  ;  Starkie,  112. 

Young,  contra.  Two  things  are  necessary  to  enable  the  plaintiif  to  recover ; 
1st,  Absence  of  probable  cause  ;  2d,  Malice. 

The  .Judge  has  done  all  that  he  could,  by  fairly  submitting  the  case  to  the  jury, 
for  their  decision. 

Wardlatv,  in  reply,  cited,  in  order  to  show  that  the  want  of  probable  cause 
should  have  been  decided  by  the  Judge,  22  Vol.  Eng.  Com.  Law  Rep.  56,  196. 

Curia,  per  Butler,  J.  From  the  way  this  case  went  to  the  jury,  they 
had  a  right  to  say  that  defendant  had  no  probable  cause  for  his  proceed- 
ing. Under  the  circumstances,  the  plaintiff  could  not  have  asked  for 
more.  He  had  an  opportunity  to  obtain  a  verdict  upon  the  only  view  of 
the  facts  which  could  have  authorized  it.  For  my  brethren  are  all  of 
opinion  that  from  the  most  obvious  view  which  could  have  been  taken  of 
the  case,  defendant  had  probable  cause  for  his  complaint  to  the  justice. 
Had  he  reasonable  grounds  to  believe  that  plaintiff  was  informed  of  all 
the  circumstances  under  which  the  hog  was  taken  ?  to  wit :  that  the 
*^R^1  negroes  *liad  caught  a  hog,  which  they  were  informed  belonged 
-J  to  the  defendant ;  and  did  they  carry  it  to  plaintiff,  and  tell  him 
all  the  circumstances?  If  so,  plaintiff  was  wrong  in  countenancing  his 
negroes  in  a  highly  censurable  and  reprehensible  proceeding.  He  did 
not,  perhaps,  intend  to  be  dishonest  himself,  but  lie  was  sustaining  his 
negroes  in  dishonesty. 

In  this  point  of  view,  defendant  had  reasonable  cause  for  instituting 
some  proceeding  to  reclaim  his  property,  and  to  prevent  future  depreda- 
tions on  it.  As  a  generous  neighbor,  he  might  have  forborne ;  but  legally, 
he  was  under  no  obligation  to  do  so.  It  is  the  duty  of  the  Judge  to  pre- 
sent the  facts,  in  their  different  points  of  view,  when  they  are  controverted, 
and  to  say,  according  to  one  or  the  other  view,  there  would  or  would  not 
bo  probal)le  cause.  There  can  be  no  artificial  rules  for  presenting  alter- 
natives to  a  jury.  Wliere,  as  in  this  case,  the  facts  were  disputed,  and 
were  Kusceptil)le  of  dillerent  views,  so  far  as  the  motives  of  the  parties 
were  concerned,  the  Judge  could  not  have  taken  on  himself  to  rule,  i)osi- 
tively,  one  way  or  the  other.  The  case,  under  such  circumstances, 
jiropcrly  went  to  the  jury;  and  the  facts  were  so  explained,  as  to  jjresent 
the  alternalives  for  their  consideration  and  decision. 

It  is  only  in  cases  wliere  the  facts  are  not  disputed,  that  a  Judge  should 
take  upon  himself  the  responsibility  of  saying  what  is  probable  cause.  It 
is  only  in  sucii  a  case,  that  the  question  of  probable  cause  is  entirely  one 
of  law. 

In  none  of  the  cases  referred  to  by  plaintilT's  counsel,  did  the  Judge 
undertake  to  decide  himself,  what  was  probable  cause,  where  tlie  facts 
were  at  all  disputed.  The  cases  in  22  E.  C.  L.  II.  53  and  196,  i)re- 
Bented  no  new  question.  In  one,  the  C.  J.  decided  that  defendant  had 
l)robable  cause  for  the  prosecution  against  the  plaintiif,  and  nonsuited 


*36o]  BELL   VS.    LAKIN.  237 

the  ])laiiitiff;  but  the  facts  in  that  case  were  not  at  all  disputed,  and  the 
Judge  was  obviously  right.  In  the  other  case,  the  facts  were  compli- 
cated and  disputed,  and  all  the  Judges  said  there  could  be  no  definite 
and  uniform  rule  laid  down  in  such  cases.  The  general  rule  is  recognized, 
that  where  the  facts  are  contested,  probable  cause  is  a  mixed  question  of 
law  and  fact,  to  be  decided  by  the  jury,  under  tlie  instructions  and  explana- 
tions of  the  presiding  Judge.  In  these  instructions,  the  different  alterna- 
tives must  be  presented  ;  that  is,  upon  the  assumption  of  one  state  of 
facts,  or  another,  the  Judge  must  say  what  would  or  *would  not  rn^oni 
constitute  })robable  cause.  An  attempt  to  subject  every  case  to  '- 
abstract  and  artificial  rules,  is  vain.  Each  case  must,  and  will,  be  modi- 
fied by  its  own  circumstances,  to  some  extent. 

It  is  enough  to  say,  that  in  the  case  under  consideration,  the  plaintiflF 
has  no  cause  to  comjjlain  of  the  manner  in  which  his  case  was  submitted 
to  the  jury.  If  the  verdict  had  been  against  the  defendant,  he,  perhaps, 
might  have  complained  that  the  Judge  did  not  interpose,  to  prevent  a 
verdict  being  rendered  against  him. 

The  motion  for  a  new  trial  is  refused. 

Richardson,  O'Neall,  and  Evans,  JJ.,  concurred. 

See  Horn  vs.  Boone,  3  Strob.  309  ;    Camphell  y^.S^C Bricn,  9  Rich.  207.     An. 


William  Bell  vs.  B.  V.  Lakin. 

In  an  action  on  the  case,  for  employing  a  slave  that  is  a  ninaway,  to  entitle  the 
plaintiff  to  recover  damages,  where  he  has  alleged  the  defendant's  acts  to  have 
been  done  with  a  scienter  of  the  fact  that  the  negro  was  the  runaway  slave  of 
the  plaintiff,  he  must  prove  the  scienter,  unless,  from  the  circumstances,  the  law 
would  presume  it. 

Where  a  declaration  contains  an  averment  that  is  foreign  to  the  issue,  and  which 
may  be  rejected  as  surplusage,  it  need  not  be  proved.  But  every  material 
averment  must  be  proved. 

Before  O'jSeall,  J.,  at  Fairfax,  July  Extra  Term,  1840. 

This  was  an  action  on  the  case,  in  which  the  plaintiff  declared  against 
the  defendant  in  six  counts;  1st,  for  enticing  away  his  slave,  knowing 
him  to  be  so ;  2d,  for  harboring  him  while  he  was  a  runaway,  knowing 
him  to  be  so  runaway,  and  to  be  the  slave  of  the  plaintiff";  3d,  for  enticing 
away  the  slave  with  the  same  scienter,  and  with  some  variations  from 
the  lirst  count ;  4th,  for  receiving  the  said  slave,  knowing  him  to  be  a  run- 
away, and  to  be  the  slave  of  plaintiff;  5th,  for  giving  the  said  slave  a 
certificate  that  he  was  free  and  entitled  to  the  *proceeds  of  his  r^onr 
labor,  knowing  him  to  be  a  runaway,  and  the  slave  of  the  plaintiff";  L  ^"^ 
and  laying  special  damage,  the  amount  of  the  gaoler's  bill  in  Columbia, 
for  the  detention  of  the  said  slave  in  gaol ;  Gth,  the  same  as  the  5th,  ex- 
cept, that  further  special  damage  to  the  amount  of  the  physician's  bill 
for  attendance  on  the  said  slave  i's  laid. 

It  appeared  that  Robert,  a  slave  of  the  plaintiff",  a  bricklayer  by  trade, 
escaped  from  him,  in  1833,  and  remained' out  of  his  possession  until  after 
May,  1838,  when  he  was  taken  up  in  Columbia,  by  Joshua  Sowden,  who 


238  COLUMBIA,    MAY,    1841.      VOL.  I.  [*365 

lodeed  him  in  gaol,  where  he  remained  until  claimed  by  the  plaintiff,  who 
paid  the  gaoler's  bill,  S74,  and  the  physician's  bill  for  attendance  on  him 
while  in  gaol.  He  had  in  his  possession  a  certificate,  signed  by  the 
defendant,  as  his  guardian,  in  which  he  was  called  Thomas  Oree,  and  was 
stated  to  be  a  free  man,  and  entitled  to  receive,  as  such,  the  proceeds  of 
his  labor.  The  defendant,  on  the  12th  June,  1838,  wrote  to  Sowden, 
stating  his  knowledge  of  Thomas  Oree  to  be,  that  he  had  passed  for  some 
time  a"s  a  free  man ;  that  he  had  been  three  years  before  in  his  employ- 
ment ;  that  he  then  had  in  his  possession  papers  showing  his  freedom, 
which  he  did  not  critically  examine.  The  value  of  the  slave's  services 
while  absent  from  his  master's  service,  was  shown  to  be  one  dollar  per 
day. 

The  defendant  clearly  and  abundantly  showed,  from  most  respectable 
testimony,  that  the  negro  man  calling  himself  Thomas  Oree,  came  into 
Lexington  District  in  '32  or  '33,  as  a  free  man  ;  that  he  was  from  that 
time  until  he  went  to  Columbia,  in  May,  1838,  treated  and  considered  by 
all  who  knew  him  in  Lexington,  Newberry  and  Fairfield,  as  a  free  man ; 
that  he  was  during  that  time,  and  before  the  defendant  was  appointed  his 
guardian,  employed  by  such  men  as  David  Montgomery,  of  Monticello, 
^laj.  Charles  .Montgomery,  of  Fairfield,  Capt.  John  Counts,  of  Lexington, 
and  Col.  William  Counts,  of  Newberry,  as  a  bricklayer  and  a  free  man. 
In  '35,  while  the  defendant,  with  his  family,  was  at  the  Pacolett  Springs, 
his  nephew,  Parr,  employed  the  man  (Thomas  Horee,  as  he  was  then 
called,  afterwards  ascertained  to  be  Robert,  the  slave  of  the  plaintiff,)  for 
one  month,  to  work  on  the  defendant's  mill  dam,  and  for  which  he  paid 
the  negro.  This  was  the  only  work  he  ever  did  for  the  defendant.  On 
^o/.f.-j  the  5th  of  June,  1837,  the  defendant  was  a])pointed,  by  the  *clerk 
-^  of  Fairfield,  (in  which  the  negro  then  resided,)  his  guardian,  and 
he  thereupon  gave  the  certificate  of  freedom  before  spoken  of 

The  jury  were  instructed  that  the  plaintiff  must  recover  on  the  ease 
made  l)y  his  pleading,  or  fail.  That  as  to  the  three  first  counts,  there 
was  no  proof  to  sustain  them,  and  that  the  cause  turned  upon  the  three 
remaining  ones.  As  to  which  they  were  told,  that  in  them,  the  i)laintilf, 
having  laid  the  defendant's  acts  to  have  been  done  with  a  scienter  of  the 
fact,  that  the  negro  was  the  runaway  slave  of  the  plaintiff,  he  could  not 
recover  without  jiroof  thereof,  unless  the  law  presumed  the  scienter. 
There  was  no  i)roof  that  the  defendant  had  any  information  or  knowledge 
which  would  K'ad  him  to  l^elieve  the  negro  was  a  slave. 
^  (jonerally  speaking,  the  law  of  master  and  servant,  as  existing  in 
England,  applied  to  master  and  slave  in  this  State,  There  are  here, 
however,  two  exceptions,  arising  from  color  and  property. 

The  first  of  tliese  makes  the  distinction,  that  slavery  is  presumed  to  be 
the  condition  of  the  negro,  until  the  contrary  appear.  I  gave  it  to  the 
jury  as  my  opinicju,  that  reputation,  and  passing  as  free,  would  be  jyrimi 
facie  evidence  of  freedom,  until  the  fact  of  slavery  was  shown.  They 
were  told  it  would  admit  of  a  grave  question,  whether,  if  a  slave,  with 
the  knowledge  of  his  master,  acted  as  a  free  man,  and  passed  as  such,  for 
four  years,  it  would  not  establish  the  fact  of  freedom,  as  against  the 
master,  so  as  to  make  the  slave  liable  to  seizure,  as  being  emancipated 
contrary  to  law.  This  was  illustrated  :  1st,  by  showing  that  the  right  of 
property  in  a  slave  might  be  lost  by  four  years  adverse  possession';  and 


*366] 


BELL   VS.    LAKIN.  239 


2d,  that  after  twenty  years  of  acknowledged  exercise  of  the  rights  of  a 
free  man,  a  deed  of  manumission  regularly  and  properly  executed,  would 
be  presumed. 

The  next  distinction  arises  out  of  the  status  of  the  negro,  as  property 
in  this  State.  In  England,  to  make  one  liable  for  the  employment  of  a 
hired  servant,  a  knowledge  of  the  fact  of  the  servant  being  previously 
employed,  must  be  brought  home  to  the  defendant.  But  here,  the  em- 
ployment of  the  slave  of  another,  with  or  without  the  knowledge  of  the 
fact,  would  make  the  person  so  employing  liable  for  the  wages  of  the 
slave,  to  the  master.  If,  therefore,  the  plaintiff  here  had  ^counted  r^opt? 
for  the  mere  employment  of  his  slave,  without  a  scienter,  or  in  L 
trover,  I  should  have  said  to  the  jury  that  he  was  entitled  to  recover  for 
the  month  which  the  slave  worked  on  the  defendant's  mill-dam,  in  1835. 
But  there  was  no  such  count,  and  the  plaintiff  could  not,  therefore,  resover 
on  this  ground. 

The  jury  were  directed  to  inquire,  1st.  Can  the  plaintiff  recover  on  the 
fourth  count,  for  receiving  the  plaintift"'s  slave  ?  This,  I  told  them, 
depended  on  the  fact,  whether  the  defendant  received  the  negro,  knowing 
him  to  be  a  slave.  For,  I  said  to  the  jury,  that  to  make  the  defendant 
liable,  it  was  not  necessary  that  he  should  know  the  negro  to  be  the  slave 
of  the  plaintiff.  It  was  sufficient  if,  in  law  or  fact,  he  had  enough  to 
create  the  knowledge  that  he  was  a  slave.  On  this  part  of  the  case,  I 
told  the  jury  that  the  fiict  that  the  defendant  found  the  negro  in  an 
admitted  and  acknowledged  state  of  freedom,  which  he  had  exercised  for 
years,  rebutted  the  legal  presumption  of  slavery  arising  from  color,  so 
far  as  the  defendant  was  concerned,  and  therefore  left  the  scienter 
unproved ;  and  hence,  on  this  count,  the  plaintiff  could  not  recover, 
unless  they  should  think  the  defendant  in  fact  knew  the  negro  to  be  a 
slave. 

They  were  then  told  to  inquire  whether  the  defendant  was  liable  for 
giving  the  negro  the  paper  certifying  that  he  was  a  free  man,  and  entitled 
to  the  proceeds  of  his  labor. 

The  jury  were  told,  that  in  many  cases  of  injury  to  property,  the  inten- 
tion with  which  the  act  was  done,  had  nothing  to  do  with  the  question, 
whether  the  plaintiff  was  entitled  to  recover.  Here,  however,  I  thought 
the  plaintiff's  right  to  recover  depended  very  much  on  the  defendant's 
intention.  If  the  paper  had  been  given  by  any  one  not  a  guardian  in 
fact  of  the  negro,  I  should  have  thought  it  sucli  a  reckless  interference 
as  might  have  made  him  liable  to  the  master,  in  some  form  of  action. 
But  here  the  act  was  done  by  one  supposing  himself  to  have  the  legal 
right.  The  Act  of  '22,(rt)  requires  every  free  male  negro  to  have  a 
guardian,  to  be  appointed  l)y  the  clerk  of  the  district  in  which  he  may 
reside.  The  clerk  appointed  the  defendant  guardian,  and  his  act  in  that 
character,  in  giving  the  negro  the  certificate  of  freedom,  and  that  he  was 
entitled  to  receive  the  proceeds  of  his  labor,  would  not  make  *him  r^i-qpo 
liable,  unless  he  knew  the  negro  to  be  a  slave.     {b)U,  however,  he  L 

(a)  7  Stat.  462,  §  7.     An. 

(b)  In  illustrating  this  part  of  the  subject,  the  jury  were  told,  if,  on  retiring  to 
Iheir  room,  they  should  be  satisfied  that  they,  with  the  information  \rhich  the 
defendant  had,  would  have  acted  as  he  did,  then  I  thought  it  would  furnish  a 
pretty  good  test  of  his  good  faith,  and  that  he  ought  not  to  be  liable. 


240  COLUMBIA,    MAT,    1841.       VOL.  I.  [*368 

knew  the  negro  was  a  slave,  then  he  would  be  liable  for  all  the  damages 
claimed. 

The  jury  found  for  the  defendant,  and  the  plaintiff  appeals,  on  the 
annexed  grounds. 

GROUNDS   OF   APPEAL. 

1.  Because  the  plaiutifF,  having  proved  that  his  runaway  slave  who  labored 
as  a  mechanic,  was  worth  a  dollar  per  day,  was  in  the  employment  of  defendant 
upwards  of  a  month,  and  that  the  defendant  became  the  guardian  of  the  negro, 
and  "-ave  him  a  permit,  in  writing,  to  contract  and  trade  for  himself,  and  to 
receive  payment  for  his  work,  about  a  year  before  he  was  apprehended,  the 
verdict  of  the  jury  is  contrary  both  to  the  evidence  in  these  particulars,  and 
to  the  law  ap])]icable  thereto. 

2.  Because  his  Honor,  the  presiding  Judge,  erred  in  charging  the  jury  : 
1st.  That  if  the  defendant  had  reason  to  believe  that  the  negro  was  free,  he 

was  not  answerable  for  becoming  the  guardian  of  the  negro,  and  for  giving  him 
the  ticket. 

t2d.  Tliat  if  one  of  the  jury  would  have  become  the  guardian  of  the  negro, 
the  plaintiff  was  not  entitled  to  recover. 

3d.  'i'hat  the  plaintiif  could  not  recover  without  proving  that  the  defendant 
knew  the  negro  was  a  slave. 

4th.  That  it  might  be  a  question  whether  a  slave  passing  as  a  free  man  for 
four  years,  might  not  be  entitled  to  his  freedom. 

5lh.  That  tlie  plaintiff  could  not  recover  for  the  month's  work  in  this  case. 

3.  Because  the  defendant,  having  employed  plaintiff's  runaway  slave,  and 
having  given  him  a  ticket  to  contract  and  trade  for  himself,  and  to  receive 
payment  therefor,  was  liable  in  law. 

J.  Gregg,  for  the  motion ;  on  the  first  ground,  contended,  that  having  failed  to 
*^fiQl  P''ove  that  the  defendant  knew  the  slave  *to  be  a  runaway,  plaintiff  could 
''  ^  only  recover  for  the  month's  labor  with  the  defendant,  and  in  his  employ 
during  the  year  1835. 

It  is  said  that  if  the  plaintiff  had  alleged  and.  proved  that  the  defendant  knew 
the  negro  to  be  a  runaway,  then  the  plaintiff  might  recover  for  the  month's  work  ; 
but  it  is  not  necessary  to  prove  every  immaterial  averment.  There  are  some  im- 
material averments  that  should  be  proved,  and  others  that  should  not. 

Cited  JJristoe  vs.  Wright,  2  Dougl.  065.  Immaterial  averments,  ti  Term  Rep. 
49(J.  Pl}ipin  vs.  Solomon.  Upon  defendant's  scienter.  Williamson  vs.  Allison.  2 
Ea.st,  44U. 

If  th((  plaintiff  had  been  aT)le  to  prove  the  scienter  in  the  defendant,  he  might 
have  n-covfrocl  the  amount  of  the  whole  time  the  negro  was  run  away. 

In  wliat  cases  must  the  scienter  be  alleged  and  proved  ? 

Wlicn  tli(.'  act  itself  is  illegal,  the  scienter  need  not  be  alleged  or  proved. 

Tlie  intention  with  which  a  party  commits  an  act  in  criminal  cases,  is  always 
inquired  into  ;  but  in  eivil  cases  the  reverse  is  the  case.  The  inquiry  is,  what 
damage  has  the  plaintiff  sustained  ? 

Wlioreiu  docs  the  difference  exist,  between  giving  the  negro  a  free  pass  and 
employing  him  for  one  month  ? 

'J'he  ground  of  action  is  not  the  benefit  tliat  the  defendant  received,  but  the  in- 
Jury  that  the  plaintiff  received,  and  the  injurious  effect  produced  by  this  act. 

./.  A.  Woodinird,  contra,  contended  there  was  a  striking  difference  between  the 
po.sition  of  the  i)laiiitiff  and  tlie  (hjfendant. 

If  tho  deff.-ndant  be  guilty  of  no  fault,  no  tort,  or  gross  negligence,  then  the 
party  is  free  from  any  damage;. 

Tho  rlefendant  was  not  i)rovod  to  have  any  knowledge  of  the  negro  being  a 
Blnvo.     Cit.id  Ksp.  Dig.  [)'.)[),  fourth  paragraph ;  id.  G19,  second  paragraph. 
_  The  noKro'H  liaving  possession  of  himself  for  four  years,  was  a  strong  presump- 
tion that  lu»  was  free,  and  tho  defendant  could  consequently  have  committed  no 
wrong. 


*369] 


BELL    VS.    LAKIX.  241 


Defendant,  if  liable  at  all,  is  liable  for  the  month's  work,  in  action  of  debt,  by 


[*370 


sum.  pro.  and  not  in  the  form  of  the  action  *brought.  But  he  contended 
that  ho  was  not  liable  at  all,  for  he  was  presumed  free,  and  defendant  had, 
under  that  view,  the  right  to  hire  him.  The  negro  was  free  to  hire  himself  and 
receive  compensation  for  his  labor.  Defendant  paid  the  negro  for  his  hire,  and 
was  free  from  any  blame. 

A  party  may  become  the  guardian  of  a  slave,  even  pending  the  question  of 
freedom. 

Cited,  on  Guardians,  2  Brev.  IGO. 

For  giving  a  permit  to  a  slave,  no  action  lies  ;  but  if  one  presumes  to  give  a 
permit  to  a  slave  against  the  will  of  the  master,  the  party  shall  suHer  by  indict- 
ment, and  also  by  civil  process. 

Curia,  per  O'Neall,  J.  In  this  case,  this  Court  is  satisfied  with  the 
instructions  of  the  Judge  below  to  the  jury. 

The  only  point  on  which  it  is  proposed  to  make  any  additional 
remarks,  is  that  assumed  by  the  defendant's  counsel  here,  that  the  scienter 
laid  in  the  declaration,  was  an  immaterial  averment,  and  need  not  be 
proved. 

There  is  no  douI)t  that  where  a  declaration  contains  an  averment 
which  is  foreign  to  the  cause,  and  which  may  be  rejected  as  surplusage, 
that  it  need  not  be  proved.  Bristow  vs.  WrigJU,  (Doug.  667.)  The 
ai)i)lication  of  this  rule  will  be  seen,  by  referring  to  Fappin  vs.  Solomon, 
(5  T.  R.  496.)  The  action  there  was  on  a  policy  of  insurance  on  a  ship 
"at  and  from  London  to  ,  and  thence  back  again  to  London." 

Tiie  declaration  averred,  that  after  making  the  policy,  to  wit : — on  the 
lOtii  of  August,  1792,  the  ship  was  in  safety  at  London.  She  sailed 
before  the  policy  was  executecl,  and  was  lost  on  her  return  voyage  :  it 
was  held  that  the  averment  was  immaterial.  For  it  was  in  no  wise  con- 
nected with  the  right  of  the  plaintiff  to  recover,  or  the  liability  of  the 
defendant.  So,  too,  in  Williamson  vs.  Allison,  (2  E.  446,)  the  action 
was  a  warranty,  and  it  was  held,  that  the  averment  of  the  scienter  was 
immaterial. 

That  proceeded  upon  the  ground,  that  tlie  gist  of  the  action  was  the 
breach  of  the  warranty. 

In  it,  I  think  Laurence,  J.,  stated  the  true  rule  when  he  said,  "if  the 
whole  of  an  averment  may  be  struck  out  without  destroying  the  phiintiff's 
right  of  action,  it  is  not  necessary  to  *prove  it.  But  otherwise,  r^o^i 
if  the  whole  cannot  be  struck  out  without  getting  rid  of  a  part  L  ^' 
essential  to  the  cause  of  action ;  for  then,  though  the  averment  be  more 
particular  than  it  need  have  been,  the  whole  must  be  proved,  or  the 
plaintiti"  cannot  recover." 

In  tlie  case  before  us,  is  the  scienter  a  material  or  immaterial  aver- 
ment ?  I  think  there  can  be  no  doubt  that  it  is  a  material  one.  The 
three  last  counts  are  the  only  ones  upon  which  the  plaintiff's  proof  raises 
a  question  to  be  met  by  the  defendant.  The  charge  in  the  fourth  count, 
without  the  scienter,  would  be,  that  the  defendant  received  the  slave  of 
the  plaintiff.  It  cannot  be  intended,  that  standing  thus,  the  plaintifi' 
could  recover;  for  there  is  nothing  unlawful  or  prejudicial  to  the  plaintiff, 
in  barely  receiving  his  slave.  A  man  may  lawfully  retain  the  possession 
of  another's  goods,  which  he  finds,  until  the  owner  demands  them.  So, 
too,  if  one  is  in  the  possession  of  the  goods  of  another,  and  makes  no  use 
of  them,  and  sets  up  no  claim  to  them,  it  could  not  be  pretended  that  an 
YoL.  I.— 17 


=372] 


242  COLUMBIA,   MAT,    1841.      VOL.  I.  [*371 

action  could  be  maintained.     Stripped  of  the  scienter,  there  is  nothing 
in  that  count  which  could  maintain  it.     Take  the  fifth  and  sixth  counts, 
in  connection  with  the   proof,   and   take   away  the   scienter,   and   the 
defendant  has  merely,  (in  the  discharge  of  a  legal  duty,  arising  out  of 
facts  then  supposed  to  be  true,  and  which  afterwards  turned  out  to  be 
false,)  done  an  act  which  did  not  prejudice  the  plaintiff.    For  at  the  time 
the  certiticate  of  freedom  was  given,  the  negro  had  been,  for  nearly  four 
years,  out  of  his  master's  possession,  and  more  than  one  hundred  and  fifty 
miles  from  him.     The  most  that  can  be  said  is,  that  the  defendant's  cer- 
tificate was  founded  in  a  mistake  of  facts.     If  he  acted  bona  fide,  he 
could  not  be  liable.     This  makes  the  scienter  the  gist  of  the  action. — 
These  views,  it  seems  to  me,  sufficiently  dispose  of  the  argument  that  the 
averment  was  immaterial.     But  I  am  disposed  to  look  a  little  further 
into  the  case.     I  have  no  doubt,  as  I  said  on  the  circuit,  if  the  plaintiff 
had  added  a  count  to  his  declaration,  in  Trover,  he  might  have  recovered 
for  the  month's  work  done  for  the  defendant,  by  the  slave,  in  '35.     For 
that  might  have  been  a  conversion  by  the  use  of  the  slave  for  that  time. 
But  in  the   absence  of  such  a  count,  the  plaintiff  had  no   pretence  to 
recover  in  this  case.     So  far  as  this  action  was  concerned,  the  defendant 
was  chargeable  exactly  upon  the  *principles  which  would  charge 
a  man  in  England  for  the  employment  of  the  servant  of  another, 
or  for  continuing  such  employment  after  notice.     In  both  cases,  the 
scienter  must  be  alleged  and  proved.     Blake  vs.  Langon,  (6  T.  Rep. 
221.)     The  reason  why  this  is  so  in  this  action,  is  because  the  action 
does   not  so  much  rest  upon  the  right  of  property,  as   it  does   upon 
the   relation  of  master  and   servant.     For  the  violation   of  that  rela- 
tion, no  action,  in  general,    lies,  unless   knowledge  is  brought   home  to 
the  defendant.     Looking  to  the  injury  done  to  the  right  of  property,  it 
would  be  redressed  by  an  action  of  Trover,  or  by  an  action  of  Assumpsit 
for  the  wages  of  the  slave,  while  working  for  the  defendant.     To  neither 
of  these  actions,  would  the  payment  of  the  wages  to  the  slave,  be  any 
defence.     For  in  law,  he  had  no  right  to  receive  them.     But  the  action 
before  us  claims  a  higher  consideration;  it  is,  that  the  defendant,  knowing 
the  relation  of  master  and  slave,  chose  to  violate  it  in  the  manner  pointed 
out  in  the  declaration.     Tliis  makes  an  entirely  distinct  case,  and  if  the 
proof  does  not  support  it,  the  plaintiff  cannot  recover.     The  case  of 
Quay  \fi.3IcNinch,  (2  Con.  R.,  by  Mill,  78,)  goes  much  further  than  I 
go  in  this  case.     For  it  holds,  that  where  a  defendant  hired  a  negro 
reputed  to  be  free,  and  found  in  a  state  of  freedom,  that  trover  w^ould 
not  lie  for  his  use.     That  case,  however,  makes  this  position  undeniable. 
That  to  entitle  the  plaintiff,  here,  to  recover,  it  was  essential  to  show 
that  the  defendant  knew  the  negro  to  be  a  slave. 
The  motion  for  a  new  trial  is  dismissed. 

The  whole  Court  concurred. 

„S^^!}  ^  ^'^=''-  '*'^;  1  I^''h.  324;  sec  as  to  surplusage— 4  Rich.  297;  2  Strob. 
2/3,  2<8.     An, 


'373]  JONES    vs.   CRAWFORD.  243 


^Thomas  Jones  vs.  John  A.  CRAwroRD.  [*373 

A  deed  executed  by  a  debtor,  with  the  view  to  defeat,  delay,  or  hinder  a  ci'editor, 
is  void. 

The  judgment  under  which  the  land  is  sold,  at  sheriff's  sale,  becomes  a  part  of  the 
title  of  the  purchaser. 

A  debtor  taking  the  benefit  of  the  "  prison  bounds'  Act,"  rendered  in  his  schedule, 
i7itcr  alia,  a  small  tract  of  land,  and  assigned  his  schedule  to  W.  F.  P.,  (the 
plaintiff  in  the  case  on  which  he  had  l)eeu  arrested.)  W.  F.  P.  afterwards  as- 
signed his  right  to  the  assignment,  the  judgment,  and  the  ca.  sa''s.  not  under  seal, 
and  without  witnesses,  to  the  plaintiff.  He  constituted  P.  E.  P.  his  attorney,  to 
sell  the  land,  wlio  advertised,  sold,  and  became  the  purchaser  of  it,  and  after- 
wards conveyed  to  the  plaintiff:  Held,  that  the  deed  of  P.  E.  P.  was  null  and 
void,  and  that  the  assignment  of  an  assignment  cannot  have  the  effect  to  pass 
land. 

An  instrument  to  pass  the  title  of  land,  must  be  under  seal,  and  witnessed  by  two 
Avitnesses. 

The  true  view  of  an  assignment  under  the  "  prison  bounds'  Act,"  is  not  that  it 
vests  the  assignor's  estate  absolutely  in  the  assignee,  but  that  it  operates  as  a 
mere  authority  to  him  to  enter  upon,  recover,  sell,  and  convey,  in  satisfaction  of 
the  debt. 

Before  O'Nball,  J.,  Richland,  Spring  Term,  1841. 

This  was  an  action  of  trespass  to  try  titles  to  a  small  tract  of  land  in 
the  neighborhood  of  Columbia,  called  "  Farmer's  Inn." 

The  laud  was  the  property  of  one  Hinson  Barker.  The  plaintiff  gave 
in  evidence  the  recoveries  of  Win.  F.  Pearson  vs.  Hinson  Barker,  in 
two  cases,  and  ca.  sa^s.  issued  thereon.  Under  them  Barker  was  arrested, 
and  petitioned  for  the  benefit  of  the  prison  bounds'  Act ;  with  the 
petition  he  filed  a  schedule,  containing,  inter  alia,  "  Farmer's  Inn." 
Barker  assigned,  in  January,  1835,  his  schedule  to  Win.  F.  Pearson. 
Soon  afterwards,  Pearson  assigned,  by  writing,  not  under  seal,  and  with- 
out witnesses,  the  judgments,  ca.  sa'*-  ,  and  assignment,  tu  the  plaintiff, 
Jones.  He,  (Jones,)  constituted  Philip  Edward  Pearson,  Esq.,  his 
attorney  to  sell  Farmer's  Inn.  lie  accordingly  gave  })ub]ic  notice,  and 
in  July,  1836,  sold  it,  at  public  outcry,  and  buuglit  it  for  theplaiutilf,  and 
conveyed  it  by  deed  to  the  plaintilV.  An  acknowledgment  of  tenancy  to 
the  plaintiff,  signed  by  Barker  and  wife,  was  given  in  evidence. 

It  appeared  that  Jones,  (the  plaintiff,)  was  the  brother  of  Mrs  Barker, 
and  that  to  him  had  been  conveyed  the  only  negro  '''which  Barker  r-.o- < 
and  wife  had  in  possession,  and  her  entire  interest  in  her  father's  ^  ^ ' 
estate.  The  defendant  purchased  Farmer's  Inn  at  sherifTs  sale,  in 
October,  1837.  It  was  sold  under  execution,  as  the  property  of  Hinson 
Barker,  in  the  case  of  Juhn  Black  vs.  McPherson  and  Barker.  The 
judgment,  execution,  levy  and  sheriff's  deed,  were  given  in  evidence.  It 
appeared  that  Barker  was  in  possession,  when  the  land  was  sold  by  the 
sheriff;  and  thit  his  possession  had  remained  unchanged,  notwith- 
standing the  assignment  to  I*earson,  and  the  supposed  acquisition  of  title 
by  Jones.     Barker  was  wholly  insolvent. 

The  jury  were  instructed  that  the  plaintiff  might  recover  on  the 
acknowledgment  of  tenancy  by  Barker  to  Jones,  if  Jones'  title  was  not 
affected  by  fraud.  They  were  told  that  Wm.  F.  Pearson's  assignment 
of  Barker's  assigaraeut  to  him,  could  not  convey  the  land  to  the  plaintiff. 


244  COLUMBIA,    xAIAY,    1841.      VOL.  I.  [*374 

Land  could  only  pass,  inter  vivos,  by  deed  executed  in  the  presence  of 
two  witnesses  ;  that  Philip  Edward  Pearson's  conveyance  to  the  plain- 
tiff, was  a  mere  nullity;  it  was  the  conveyance  of  the  agent  to  his 
princijial,  which  was  rather  worse  than  the  conveyance  of  a  man  to 
himself 

The  jury  were  told,  in  making  up  their  conclusion  whether  Jones'  title 
was  fraudulent,  they  might  look  to  the  facts,  that  he  was  the  brother-in- 
law  of  Barker ;  that  to  him  his  entire  estate  had  been  conveyed ;  and 
that  Barker  had  been  suffered  to  remain  in  the  possession  of  the  land,  to 
the  time  when  seized  and  sold  by  the  sheriff.  From  these  facts,  they 
were  told  they  might  find  against  Jones'  title,  as  affected  by  fraud  against 
creditors.  For  tiie  defendant,  a  purchaser  at  sheriff's  sale,  stood  in  the 
place  of  the  creditor  under  whose  execution  he  derived  title. 

The  jury  found  for  the  defendant,  and  the  plaintiff  appeals,  on  the 
annexed  grounds. 

GROUNDS    OF    APPEAL. 

1.  Because  bis  Honor  charged  the  jury  that  they  were  at  liberty  to  presume 
fraud  against  the  plaintiff,  from  the  fact  that  he  permitted  Barker,  his  relation, 
to  remain  on  the  premises  after  he  had  sold  the  same  to  him,  as  tenant  of  the 
premises. 

ii.^-r^       2.  Because  his  nonor  charged  the  jury,  that  the  defendant  *occupied 
""'^'  the  same  position  as  a  creditor  of  Barker  would  have  occupied  had  he 
been  tlie  purchaser. 

3.  Because  his  Honor  charged  that  the  assignment  of  William  F.  Pearson, 
to  the  plaintiff,  of  the  assignment  to  hnn,  of  said  bouse  and  lot,  (vas  a  nullity ; 
and  that  tlie  assignment  of  the  fi.J'a'.i.  and  ca.  sa's.  for  the  satisfaction  of  vv'hicb 
Barker's  assignment  was  made,  to  said  plaintiff,  by  said  Pearson,  made  no 
difference  in  the  case. 

4.  That  the  verdict  was  contrary  to  the  law  and  the  evidence. 

Black,  for  the  motion,  said,  Crawford  claims  under  a  title  that  cannot  be  main- 
tained. 

By  the  assignment,  the  legal  estate  passed  to  Wm.  F.  Pearson.  This  is  not  im- 
peached for  fraud. 

The  e.state  l)eiiig  in  Pearson,  he  might  sell;  had  he  conveyed,  a  title  would  have 
passed  ;  hut  I'earson  assigned  to  .Jones. 

The  equitaljle  interest  then  passed  to  Jones,  who  constituted  Pearson  his  agent 
to  sell ;  he  did  sell — purchased  Farmer's  Inn,  and  conveyed,  by  deed,  to  plaintifif. 

Fanner's  Inn  was  sold  under  an  execution  against  Barker.  That  sale  gave 
Crawford  no  title,  for  Barker  had  none. 

.Jones  may  liave  aciiuired  his  claim  to  the  negro  and  estate  of  Mrs.  Barker,  by 
frauil,  l)ut  it  has  no  aijplication  to  this  case. 

The  jury  were  instru(;ted  that  they  might  presume  fraud. 

ir.  /'.  JJe  Suitssure,  contra,  submitted  the  case  without  argument. 

C'lirin,  'per  O'Xkaij,,  J.  In  discussing  this  case,  I  will  first  consider 
the  second  ground  of  appeal,  which  supposes  that  the  judge  below  was 
iu  error  in  saying  that  the  defendant  occupied  the  position  of  the  creditor 
under  whose  judgment  he  bought  This  will  only  need  to  be  touched,  to 
be  jtlaced  in  its  i)roper  point  of  view. 

A.A  against  a  creditor,  a  deed  executed  with  a  view  to  defeat,  delay  or 
hinder  him,  is  void.  He  is  therefore  at  liberty  to  treat  the  estate  of  his 
d(d.tor,  thus  conveyed,  as  if  no  such  conveyance  existed,  and  to  sell  it  in 
satisfaction  of  his  debt.(fl)     Tlie  purchaser  buying  at  such  sale,  must  be 

('0  4  Rich.  129. 


^375] 


JONES   VS.   CKAWFORD.  245 


permitted  to  show  all  the  facts  which  make  liis  title  good,  or  else  a  sale 
by  the  ^creditor  would  be  of  no  importance.     To  do  this  he  must  r;cq-^ 
stand  in  the  place  of  the  creditor.     Indeed  the  judgment  is  a  part  ^ 
of  his  title,  and  for  that  reason,  if  there  was  no  other,  he  must  be  allowed 
to  show  the  same  facts  which  the  creditor  could,  in  oi'der  to  give  it  effect. 

This  much  I  have  thought  it  necessary  to  say,  in  answer  to  this  ground, 
in  the  hope  of  making  that  jiast  all  future  dispute,  which  has  been  here- 
tofore treated  as  not  admitting  of  question,  as  will  be  seen  by  referring  to 
the  almost  innumerable  cases  of  fraud  with  which  our  books  are  crowded. 

The  third  ground  raises  the  question  of  the  validity  of  Wm.  F.  Pear- 
sou's  assignment  to  the  plaintiff  of  Barker's  assignment  of  Farmer's  Inn, 
accompanied  by  the  assignment  of  the  judgment  and  ca.  sa's.  It  would 
be  enough  here  to  concede  that  Barker's  assignment  of  Farmer's  Inn, 
under  the  prison  bounds'  Act,  vested  in  "Wm.  F.  Pearson  the  legal  estate. 
For,  in  that  event,  it  was  an  estate  in  land,  which,  to  be  legally  conveyed 
in  this  Slate,  must  be  evidenced  by  a  deed,  executed  in  the  presence  of 
two  witnesses.  Alston  vs.  Thompson,  (1  So.  Ca.  Pep.  by  Cheves,  2T1.) 
A  short  assignment  of  an  assignment,  conveys  nothing,  but  wanting  the 
requisites  of  being  under  seal  and  witnesses,  (if  it  were  even  otherwise 
sufficient,)  it  cannot  have  the  effect  to  pass  land.  It  is  a  great  deal 
more  like  the  instrument  in  Cline  vs.  Black,  (4  McCord,  431,)  than  it 
is  like  a  deed.  In  that  case,  a  nonsuit  was  ordered,  because  the  instru- 
ment was  not  under  seal,  and  could  not,  therefore,  pass  land.  In  the 
Court  of  Appeals,  my  brother  Johnson  said,  with  great  truth,  "  Upon 
the  whole,  I  scarcely  recollect  a  case  in  which  there  were  so  many  well 
founded  objections  to  the  plaintiff's  recovery."  The  same  might,  I  think, 
be  very  well  said  of  this  part  of  this  case. 

.  But,  I  think,  the  true  view  of  an  assignment  under  the  prison  bounds' 
Act,  is  not  that  it  vests  the  assignor's  estate  absolutely  in  the  assignee, 
but  that  it  operates  as  a  mere  authority  to  him  to  enter  upon,  recover, 
sell  and  convey  it,  in  satisfaction  of  the  debt.  The  words  are  that  the 
"judge,  justice,  or  commissioner  of  special  bail,  before  whom  the  prisoner 
shall  be  brought,  shall  order  an  assignment  of  the  prisoner's  estate,  and 
effects  mentioned  in  the  schedule,  to  be  made  to  the  plaintiff,  subject, 
nevertheless,  to  all  prior  incumbrances;  whereupon  the  creditor,  if  neces- 
sary, may  take  possession,  and  if  necessary,  *sue  in  his  or  her  own  ^^^-.^^^ 
name  for  the  recovery  thereof."  These  words,  without  stopping  L  '^ '  ' 
to  comment  upon  them  particularly,  plainly  import  a  naere  authority,  (if 
necessary  to  be  exercised,)  to  take  possession  and  sue  for  the  recovery 
thereof.  Stopping  there,  possession  taken  under  the  assignment,  would 
be  merely  satisfaction  of  the  debt.  (5  Stat,  at  Large,  19.)  But  the 
fifth  section  provides,  if  the  property  mentioned  in  the  schedule  "should 
prove  deficient,  any  other  property  which  the  prisoner  may  have,  or 
thereafter  may  acquire,  shall  be  liable."  This  shows  that  it  was  intended 
that  the  creditor  should  ascertain  the  money  value  of  the  property 
assigned  ;  and  no  better  mode  can  be  resorted  to  than  a  sale,  and  the 
application  of  the  proceeds  in  satisfaction  of  the  debt.  The  assignee's 
power  over  his  debtor's  estate  assigned,  is  the  same  in  most  respects 
with  that  of  the  sheriff  under  execution.  He  has  the  right  to  enter,  sell, 
and  convey,  in  satisfaction.  This  was,  huwever,  not  done  here.  Tlie 
assignment  of  an  assignment  under  the  prison  bounds'  Act,  is  the  assign- 


246  COLUMBIA,   MAT,    1841.      VOL.  I.  [*377 

ment  of  a  power  which  can  hare  no  effect  whatever.  The  assignment  to 
Pearson  was  not  carried  into  legal  effect.  He  suffered  Farmer's  Inn  to 
remain  in  the  uninterrupted  possession  of  Barker,  and  his  estate  remained 
undivested,  for  the  plain  reason  that  the  power  which  he  had  granted 
was  not  exercised.  This  view  of  it  was  taken  by  the  parties  themselves, 
for  Jones,  as  Wm.  F.  Pearson's  assignee,  constituted  P.  E.  Pearson  his 
attorney,  to  sell  and  convey  Farmer's  Inn,  and  he  accordingly  sold  it, 
purchased  it  for,  and  conveyed  it  to,  his  principal.  This  proceeding  was 
illegal,  and  has  not  been  attempted  to  be  sustained  in  argument.  But  it 
shows  that  the  parties  claiming  under  the  assignment  did  not  suppose 
that  it  clothed  them  with  the  title  to  the  land,  but  only  with  an  authority 
to's?ll  and  convey. 

The  assignment  of  the  judgments  and  the  ca.  sa^s.  cannot  help  to  vest 
in  the  plaintiff  an  estate  which  he  has  not  otherwise  acquired.  They 
would  only  support  his  title,  if  it  could  be  legally  deduced  from  them. 
But  here,  when  Pearson  did  not  act  under  his  assignment,  the  assignment 
of  the  judgment  and  executions,  when  the  assignment  of  the  assignment 
was  made,  may  go  far  to  show  that  the  title  of  Barker  was  not  intended 
to  be  divested,  but  to  be  so  covered  up  with  incumbrances  that  it  could 
not  be  reached  l)y  his  other  creditors. 

,  -,  *This  brings  me  to  the  first  ground,  which  supposes  that  the 
-J  Judge  below  erred,  in  submitting  to  the  jury  the  question  whether 
Jones's  title  was,  or  was  not,  fraudulent.  From  what  has  been  already 
said,  it  is  plain  that  Jones  cannot  connect  himself  with  Pearson's  title 
under  the  assignment,  whatever  it  may  be.  But  when  it  is  remembered 
that  Pearson,  under  his  assignment,  had  no  title  to  the  absolute  estate, 
but  that  he  had  a  mere  power  to  enter  upon  Barker,  and  sell  and  convey 
"  Farmer's  Inn,"  in  satisfaction  of  his  debt,  and  that  no  such  entry  was 
made,  there  is,  it  seems  to  me,  an  end  of  all  pretence  on  that  score.  But, 
I  go  further  :  the  jury  might  well  conclude,  from  the  relationship  between 
Jones  and  Barker,  from  the  conveyance  to  the  former  of  the  whole  of  the 
l)orsonal  estate  and  interest  of  the  latter  and  his  wife,  that  the  debts  to 
Pearson  were  really  paid  by  Jones,  out  of  Barker's  funds,  and  the  assign- 
ments were  made  as  a  cover  to  protect  the  property  against  creditors. 

But  the  true  view  is  to  put  Pearson's  assignment  out  of  view,  and  to 
look  to  the  plaintiff,  Jones,  as  standing  on  Barker's  acknowledgment  of 
tenancy.  To  give  that  its  strongest  effect,  it  is  only  an  admission  by  him 
of  Jones's  title  ;  and  standing  by  itself,  in  a  question  of  fraud,  it  could 
not  certainly  claim  to  stand  on  higher  grounds  than  his  deed.  Looking 
to  it,  it  furnishes  evidence  that  at  or  before  its  date,  the  debtor,  Barker, 
had  conveyed  Farmer's  Inn  to  Jones  ;  the  question  can  then  well  be 
made  by  a  creditor,  whether  the  conveyance  is  not  void  by  fraud. 

To  enable  the  jury  to  decide  this  question,  the  following  facts  had  been 
proved,  to  wit  :  1st.  That  Barker,  from  the  day  on  which  he  purchased 
tlip  plare  called  Farmer's  Inn,  to  the  day  on  which  it  was  sold  by  the 
slicriff,  liad  remained  in  the  undisturbed  possession.  2d.  That  Jones  was 
]u<  brother-in-hiw.  '{d.  That  to  him  Barker  and  his  wife  had  conveyed 
nil  his  and  lier  estate,  properiy  ami  interest.  To  them  the  attention  of 
the  jury  was  dircc'ied,  and  they  were  told,  that  if  they  satisfied  them  that 
Jones's  lit'"  was  a  mere  cover  to  protect  Barker's  property  from  the 


*378]  TUE   ORDINARY   VS.   HUNT.  247 

claims  of  his  creditors,  then  they  might  find  for  the  defendant;  otherwise 
they  must  find  for  the  plaintiff. 

This  was  submitting  the  question  of  fraud,  as  one  of  facts  merely,  to 
the  jury,  and  it  would  be  strange  to  say  that  the  *matter  which  r^o-n 
belonged  appropriately  to  them,  should  be  withheld  from  them.  L 
And  it  is  still  stranger  that  the  plaintiff  should  complain  of  error,  when 
the  question  of  fraud  is  put  to  the  jury  as  a  fact,  which  is  the  most  favor- 
able way  in  which  it  could  be  put  for  him. 

The  motion  is  dismissed. 

Richardson  and  Evans,  JJ.,  concurred. 


*The  following  case  was  decided  at  Charleston,  February, 
1841,  but  the  copy  did  not  arrive  in  time  for  it  to  be  printed 
in  its  proper  place. 


[*380 


The  Ordinary  of  Charleston  vs.  Benjamin  F.  Hunt. 
The  Same  vs.  William  Swift. 

A  creditor  may  sue  upon  an  administration  bond,  without  citing  the  administrator 
to  account  before  the  Ordinary,  or  obtaining  a  decree  against  him. 

In  such  case,  it  is  necessary  to  show,  that  the  demand  has  been  established  against 
the  estate  ;  and  that  assets  came  to  the  hands  of  the  administrator  sutficient  to 
pay  it,  which  have  been  wasted  or  misapplied. 

A  judgment  at  law  against  the  admmistrator  for  the  original  demand,  with  a  return 
of  nulla  bona  on  execution,  together  with  proceedings  in  Equity,  to  which  the 
administrator  was  a  party,  and  by  which  it  appeared  that  assets  had  come  to  his 
hands  sufficient  to  pay  the  demand,  but  which  he  had  applied  to  the  payment  of 
debts  of  inferior  degree,  are  sufficient  to  entitle  the  creditor  to  recover  from  the 
securities. 

Before  Earle,  J.,  at  Charleston,  May  Term,  1839. 

This  was  an  action  of  debt  upon  an  administration  bond,  against  the 
defendants,  as  securities  of  William  T.  Raynal,  who  was  the  administrator 
of  William  Rouse,  deceased.     Plea,  performance. 

After  proof  of  the  bond  a  judgment  was  offered  in  evidence,  in  favor 
of  Sanders  Glover,  (for  whom  this  action  was  brought,)  against  Raynal, 
as  administrator  of  Rouse,  signed  II  February,  1832,  on  which  an  execu- 
tion had  been  returned  nulla  bona.  Certain  proceedings  in  equity  were 
then  introduced,  consisting  of  a  bill,  filed  by  the  heirs  at  law  of  William 
Rouse,  against  Raynal,  for  a  partition  of  the  real  and  an  account  of  the 
personal  estate ;  the  answer  of  Raynal,  and  the  subsequent  reports  and 
orders.  Among  these  was  a  decretal  order  of  22d  May,  1830,  directing 
a  sale  of  the  real  estate,  and  an  account  of  the  personal  estate.  The 
commissioner  was  directed  to  take  an  account  of  the  debts  of  the  intes- 
tate, which  should  be  rendered  within  a  year,  and  after  making  provisions 
for  the  payment  of  them,  to  report  the  amount  in  the  hands  of  the 


248  CHARLESTON,  FEBRUARY,  1841.      VOL.  I.  [*380 

administrator  for  distribution.  On  21st  May,  1831,  he  reported  the 
sale  of  the  real  estate,  and  that  the  personal  assets  amounted  to  the  sum  of 
^„-,,-,  $4230  50,  *aud  the  disbursements  to  §3278  48,  leaving  a  small 
-I  balance  in  the  hands  of  the  administrator  ;  that  from  the  sales  of 
the  real  estate,  he  had  retained,  to  pay  debts,  the  amount  of  $3766,67, 
that  sum  being  regarded  by  the  administrator,  and  the  other  distributees, 
as  fully  adequate  to  meet  them.  On  the  7th  May,  1832,  the  commis- 
sioner made  an  additional  report,  that  bond  debts  had  been  established 
against  the  estate  of  Ptouse,  to  the  amount  of  $5349  54  ;  that  the  amount 
retained  to  meet  them,  with  the  interest  accrued,  was  $4224  50,  leaving 
a  deficiency  of  funds  of  $1125  ;  that  the  debts  paid  by  the  administrator 
out  of  the  personal  assets,  were  all  simple  contracted  debts,  and  that  he 
had  due  notice  of  the  bond  debts.  It  was  in  evidence  that  written  notice 
of  Glover's  debts  was  given  to  the  administrator,  on  27th  January,  1830, 
at  which  time  his  own  return  exhibited  assets  in  his  hands,  to  the  amount 
of  $3000,  which  he  proceeded  to  pay  over  to  simple  contract  debts. 
These  reports  were  confirmed,  and  under  the  several  orders  made  in  the 
cause,  the  commissioner  distributed  the  fund  retained  out  of  the  sale  of 
the  real  estate,  among  the  bond  creditors,  of  whom  Glover  was  one,  and 
when  the  fund  was  exhausted,  there  remained  due  to  him  a  balance  of 
$818  60,  for  which,  with  interest,  this  action  was  brought  against  the 
securities,  Pvaynal  having  left  the  State  in  1834. 

A  motion  for  a  nonsuit,  on  several  grounds,  was  overruled,  and  the 
plaintiff  had  a  verdict,  which  the  defendants  now  moved  to  set  aside,  and 
renewed  their  motion  for  a  nonsuit,  mainly  on  the  grounds  taken  below, 
— that  the  administrator  was  not  cited  to  account  before  the  Ordinary, 
and  there  was  no  decree  against  him,  either  by  the  court  of  Ordinary,  or 
the  court  of  Equity,  to  entitle  the  plaintiff  to  recover  against  the  securi- 
ties. It  was  likewise  urged,  that  there  was  no  sufficient  evidence  of  a 
devastavit,  as  the  administrator  had  applied  the  personal  assets  to  the 
l>aymeiit  of  debts,  although  of  inferior  degree ;  and  the  court  of  Equity 
having  undertaken  to  make  provision  for  the  payment  of  the  bond  debts 
out  of  the  real  estate,  it  was  the  fault  or  laches  of  the  plaintiff,  that  he  did 
not  secure  his  del^t ;  and  the  securities  of  the  administrator  were  no  further 
liable. 

*382l  Curia,  per  Earle,  J.  From  the  number  of  cases  in  our  *books 
of  rejiorts,  arising  out  of  the  liability  of  administrators  and  their 
securities,  one  would  suppose  that  a  new  point  could  hardly  arise.  Yco 
I  think  there  are  some  errors  prevailing  among  the  profession  on  this 
suitject,  as  I  think  there  arc  some  ill-considered  dicta  scattered  through 
the  cases.  One  of  these  is,  that  no  action  at  all  can  be  maintained  on 
the  administration  bond,  against  the  securities,  until  the  administrator 
has  been  cited  before  the  Ordinary  to  account,  and  there  has  been  a 
decroe  against  him.  A  creditor  of  the  estate  has  no  claim  to  go  before 
the  Ordinary  r.)r  an  account;  nor  has  the  Ordinary  any  jurisdiction  to  de- 
cree tiic  i)ayinent  of  his  d(>l)t,  or  to  make  any  decree  that  would  avail  him 
in  the  collection  of  if.  WIkmi  the  suit  on  the  bond  is  for  the  heirs  at  law 
or  distributees,  an  account  befure  some  tribunal  is  necessary,  in  order  to 
ascertain  fur  what  sum,  after  the  payment  of  debts,  the  administrator  is 


*382]  THE    ORDINARY    VS.    HUNT.  249 

liable.  A  creditor  suing  on  the  bond,  has  only  to  establish  his  debt 
against  the  estate  of  the  intestate,  and  show  that  assets  have  cotne  to  the 
hands  of  the  administrator,  sufficient  to  yiay  it,  which  have  been  misap- 
])lied.  The  conclusion  of  the  Court,  in  the  Ordinary  ^s.  Jones,  (4  McC. 
113,)  is,  that  "  no  action  should  be  had  upon  the  bond,  until  by  a  proper 
course  of  proceeding,  the  claim  of  the  creditor  be  established,  and  it  be 
ascertained  that  there  are  assets  sufficient  to  pay  his  demand,  or  a  devas- 
lavit  be  clearly  and  formally  established  against  the  administrator." 

The  evidence  in  the  case  before  us,  comes  up  to  the  requisition  of  the 
rule  thus  laid  down.  The  demand  of  the  creditor  was  established  against 
the  estate  of  Rouse,  in  the  action  at  law  against  the  administrator,  in 
which  there  was  a  verdict  for  the  plaintiff,  after  full  defence,  and  on 
full  proof.  Had  the  plaintiff  proceeded  to  suggest  a  devastavit,  and  fur- 
nished the  evidence  which  was  produced  in  Equity,  or  exhibited  the  pro- 
ceedings, he  must  have  had  judgment  de  bonis  proj'iriis  against  the 
administrator,  which  would  have  fixed  the  securities,  in  a  subsequent 
action  against  themselves.  And  it  seems  to  me,  that  the  only  inquiry  to 
be  made  is,  whether  the  proceedings  in  Equity  furnish  sufficient  evidence, 
that  on  accounting,  under  the  decree  of  that  court,  for  the  personal  estate, 
the  administrator  had  assets  to  pay  the  demand  claimed  of  him,  and  that 
he  wasted  them  or  misapplied  them.  The  suit  there  was  instituted  by  the 
heirs  at  law,  for  partition  of  the  real,  and  an  account  of  the  personal, 
estate.  A  portion  of  the  bond  ^creditors,  and  among  them  r*oQo 
Glover,  for  whom  this  action  is  brought,  interprosed  a  claim  to  •- 
be  paid  out  of  the  real  estate ;  and  upon  taking  the  account  of  the  per- 
sonal estate,  it  ajtpeared  that  assets  had  come  to  the  hands  of  the  admin- 
istrator, sufficient  to  pay  Glover's.debt,  which  he  applied  to  the  payment 
of  simple  contract  debts,  after  notice.  This  was  a  devastavit  in  him, 
which  makes  the  securities  liable.  All  the  persons  interested  in  the 
estate,  wei-e  parties  to  that  proceeding  ;  which  was  in  effect  beneficial  to 
the  securities :  for  who.tever  was  received  by  the  creditors  out  of  the  sales 
of  the  land,  diminished  their  liability  to  that  extent ;  and  they  have  very 
little  reason  to  complain  that  they  are  only  made  liable  for  the  balance. 
That  the  creditors  resorted  to  Equity  to  obtain  payment  out  of  the  land, 
in  no  degree  lessens  their  claim  to  proceed  at  law  against  the  administra- 
tor or  his  securities.  And  without  giving  effect  to  the  report,  confirma- 
tions, and  orders  in  Equity,  as  res  judicata,  establishing  a  devastavit,  the 
other  evidence  before  the  court  below  was  enough  for  that  purpose. 
The  written  notice  of  Glover's  debt  was  served  on  the  administrator, 
the  2Tlh  January,  1830;  and  his  account  filed  with  the  Ordinary,  exhib- 
ited an  amount  of  three  thousand  dollars,  then  in  his  hands,  and  paid, 
subsequently,  to  simi)le  contract  debts.  This,  with  the  return  of  nulla 
bona  on  the  execution  against  the  administrator,  abundantly  establishes 
the  devastavit.  The  administrator  has  not  performed  his  undertaking, 
faithfully  to  administer  the  personal  assets.  And  the  failure  of  the  credi- 
tor to  oljtain  the  whole  of  his  debt  out  of  the  real  estate,  is  no  defence  to 
his  action  against  the  securities,  who  arc  justly  liable,  upon  the  same 
proof  which  would  have  been  sufficient  against  their  principal.  There  is 
no  pretence  for  the  charge  of  laches  against  the  creditor,  admitting  that 
to  be  a  valid  defence  ;  although  it  would  not  be,  for  he  gave  timely  notice 


250  CHARLESTON,  FEBRUARY,  1841.      VOL.  I.  [*383 

of  bis  demand ;  and  both  the  personal  estate  was  exhausted,  and  the 
land  sold  for  partition,  before  he  obtained  judgment.     That  a  sufficient 
sum  was  not  retained  to  pay  all  the  bond  debts,  was  not  the  fault  of  the 
plaintiff,  but  of  the  administrator,  and  the  heirs  at  law. 
The  judgment  of  the  Circuit  Court  is  affirmed. 

The  whole  Court  concurred. 

Hunt  and  Thomson,  for  the  motion.   Grimke,  contra. 

See  Sup.  100  ;  7  Rich.  179  ;  3  Bur.  530  ;    Wiley  vs.  Johnson,  6  Rich.  358.     An. 


CASES  AT   LAW 

AKGUED  AND  DETERMINED  IN  THE 

COURT    OF    ERRORS    OF    SOUTH  CAROLINA 

€>hnxksian,  d^ebntarg,  1841. 


JUDGES  OF   THE  COURT  OF  ERRORS. 

HON.  DAVID  JOHNSON,  Chancellor. 

"  RICHARD  GANTT,    Law  Judge. 

"  JOHN  S.  RICHARDSON,  Law  Judge. 

"  JOHN  BELTON  O'NEALL,  Law  Judge. 

"  WILLIAM  HARPER,  Chancellor. 

"  JOSIAH   J.  EVANS,  Law  Judge. 

«'  BAYLIS  J.  EARLE,  Law  Judge. 

"  JOB  JOHNSTON,   Chancellor. 

"  ANDREW  PICKENS  BUTLER,  Law  Judge. 

"  BENJAMIN  F.   DUNKIN,  Chancellor. 


James  Murray  vs.  South  Carolina  Railroad  Company. 

The  Railroad  Company  are  not  liable  to  one  of  their  agents  for  an  injury  arising 
from  the  negligence  of  another  competent  agent. 

Before  O'Neall  J.,  Barnwell,  July  Extra  Term,  1838. 

This  was  an  action  on  the  case,  against  the  defendants,  for  an  injury 
sustained  in  their  service. 

The  plaintiff  is  a  tailor  by  trade.  He  resided  at  Aiken,  and  applied 
to  Capt.  Robertson,  the  agent  of  the  company,  for  employment.  He 
declined  employing  him,  on  account  of  his  intemperate  habits  and  conse- 
quent rashness.  He,  however,  went  on  to  Charleston,  and  was  employed 
as  a  second  fireman,  *on  the  18th  of  May.  He  selected  the  r:(cqop 
engine  and  engineer  to  which  he  was  to  be  attached  and  under  '- 
whom  he  was  to  serve.  William  E.  Perry  was  the  engineer.  About  the 
21th  of  May,  1837,  the  plantiff's  second  or  third  trip,  as  the  engine  was 
ascending  the  road  from  Charleston,  near  the  Four  Hole  Swamp,  just 
before  entering  an  excavation,  and  within  about  three  hundred  yards  of 
it,  one  of  the  witnesses  (Johnson,  the  first  fireman,)  said  he  saw  a  horse 


252  CHAKLESTOX,  FEBRUARY,  1841.      YOL.  1.  [*386 

standing  near  the  commencement  of  the  excavation,  within  ten  steps  of 
the  road,  feeding  slowly  towards  it :  he  touched  the  engineer  on  the 
back,  and  asked  him  if  he  saw  the  horse  ;  he  made  no  reply  :  the  engine 
ran  on  :  the  plaintiff  said  to  the  engineer,  "  stop  we  are  in  danger  :"  the 
engine  still  proceeded,  until  within  fifty  or  sixty  yards  of  the  horse  :  this 
witness  said  he  then  put  his  hand  on  the  "  escape  steam  valve,"  and  told 
the  engineer  again  to  stop,  for  there  was  danger  of  running  over  the 
horse,  and  pointed  towards  him  :  he,  the  engineer,  then  shut  off  the 
steam  :  by  this  time  the  horse  stepped  upon  the  road,  and  there  stood  : 
the  engine  with  the  steam  shut  off,  ran  within  six  or  eight  feet  of  the 
horse  :  the  engineer  gave  her  all  the  steam  she  could  carry,  to  carry  her 
as  quick  as  possible,  and  with  the  least  danger,  over  the  horse.  At  this 
moment,  this  witness  took  hold  of  the  awning  post,  and  swung  himself 
outside  the  engine,  for  the  purpose  of  jumping  off  on  the  left  hand  side 
of  it :  in  this  position  he  could  see  under  the  engine,  which  struck  and 
ran  over  the  horse  :  as  ii  left  the  road  on  the  right  hand  side,  the  witness 
jumped  off  on  the  left.  His  post  was  on  the  left,  and  the  plaintiff's  on 
the  right,  of  the  engine  :  the  break  to  stop  the  engine  was  on  the  right, 
and  nearer  the  plaintiff  than  the  witness  :  when  the  engineer  shut  off  the 
steam,  the  brake  was  not  let  down  :  (he  said  he  was  too  much  agitated 
by  fear  to  think  of  the  brake :)  had  it  been  let  down,  the  engine  might 
have  been  stopped.  As  the  engine  left  the  road,  the  plaintiff's  leg 
dropped  between  the  foot  board  of  the  engine  and  tender,  and  as  these 
two  came  violently  together,  when  the  engine  stopped,  his  leg  was 
crushed,  and  his  thigh  was  afterwards  amputated  midway.  This  witness 
gave  it  as  his  opinion,  very  distinctl}',  that  the  accident  might  have  been 
avoided,  and  resulted  from  the  carelessness  of  the  engineer,  in  not 
stopping  the  engine  as  soon  as  cautioned  :  he  thought  that  as  the  engine 
*^S71  ^^^  running  only  at  the  rate  of  ten  or  twelve  miles  per  *honr, 
-I  it  might  have  been  stopped  before  they  reached  the  horse.  He 
said  it  was  not  the  fireman's  duty  to  let  down  the  brake,  unless  ordered 
by  the  engineer.  Meredith,  the  conducter  of  the  train,  said,  just  as  they 
emerged  from  an  excavation,  he  saw  the  horse  about  fifteen  yards  from 
the  road,  moving  from  behind  some  bushes,  and  running  in  an  oblique 
direction  towards  the  road,  and  in  the  direction  the  engine  was  pursuing  ; 
lie  ran  thus  about  twenty  yards,  when  he  leaped  upon  the  road  between 
the  rails,  just  at  the  entrance  of  another  excavation  :  as  he  did  so,  the 
engine  struck  him,  and  passed  over  him,  and  was  thrown  off  the  track. 
The  engine  was  running  from  sixteen  to  twenty  miles  an  hour  From 
the  time  this  witness  saw  the  horse,  he  said  that  he  thought  the  only  way 
to  avoid  him  was  to  outrun  him.  He  said,  that  to  stop  the  engine,  it  is 
the  duly  of  the  engineer  to  shut  off  the  steam,  and  the  firemen  to  let  down 
the  "  brake  ;"  it  is,  however,  the  engineer's  duty  to  order  the  fireman  to 
let  down  the  brake.  Perry  was  proved  to  be  a  skilful  professional 
engineer.  The  witnesses,  Robertson  and  Ross,  concurred  in  saying, 
that  it  was  the  duty  of  the  engineer  to  shut  off  the  steam,  and  the  fireman 
to  let  down  the  brake,  (and  that  was  the  particular  duty  of  the  second 
fireman)  whether  ordered  by  the  engineer  or  not  to  stop  the  engine  and 
jirevent  any  accident.  About  three  hundred  feet  is  as  short  a  space  as 
within  wliich  the  engine  can  be  stopped,  when  running  at  the  average 
rate  of  fifteen  miles  an  hour. 


*387] 


MURRAY   V-9.   RAILROAD   COMPANY.  253 


The  jury  were  instructeil,  tliat  the  plaintiff's  service  subjected  him  to 
all  the  ordinary  risks  and  perils  of  the  employment.  Each  officer  of  the 
company,  as  to  strangers  and  inferiors,  was  to  be  considered  as  the  com- 
pany ;  and  every  connuand  or  act  given  or  done  by  him,  must  be  regarded 
as  given  or  done  by  the  company  themselves.  If  a  superior  officer  had 
given  an  order  to  an  inferior,  to  do  an  act  not  necessary  to  be  done,  and 
not  within  the  duty  of  the  inferior,  and  in  doing  it,  injury  resulted  to  the 
inferior,  then  the  company  would  be  responsible.  If,  in  running  the 
road,  a  superior  officer  (the  engineer)  did  his  duty  so  carelessly  as  to 
subject  a  servant  of  the  company  to  unnecessary  danger,  and  which  the 
servant  could  not  avoid,  then  the  company  would  be  liable.  But  if  the 
peril,  from  which  the  injury  resulted,  was  unavoidable,  or  if  the  engineer 
did  every  thing  ordinary  prudence*  suggested,  to  avoid  it — and,  r^ooq 
notwithstanding,  a  servant  sustained  injury,  it  would  be  one  of  the  ^ 
risks  to  which  his  contract  of  service  subjected  him,  and  he  could  not 
recover.  So,  too,  if  the  servant,  (the  second  fireman,)  did  not  do  his 
duty,  and  to  its  neglect  (as  not  letting  down  the  brake)  the  injury  might 
be  fairly  ascribed,  then,  in  that  case,  his  injury  would  be  attributable  to 
himself,  and  he  could  have  no  redress  against  the  company. 

The  facts  under  these  instructions,  were  submitted  to  the  jury.  I 
thought,  and  still  think,  there  was  very  little  proof  to  justify  a  verdict, 
but  still  that  little  may  sustain  the  verdict,  $1,500,  found  by  the  jury  for 
the  plaintiff. 

The  defendants  appeal,  on  the  annexed  grounds. 

GROUNDS    OF    APPEAL. 

1.  Because  the  plaintiff,  being  a  fireman  actually  employed  on  the  car  to 
which  the  accident  occurred,  cannot  recover  against  the  company  in  whose 
service  he  was. 

2.  Because  the  ordinary  risks  of  the  occupation  of  the  plaintiff  are  to  be 
sustained  by  himself,  and  the  accident  was  the  result  of  such  risks. 

3.  Because  the  plaintiff  himself  was  partly  in  charge  of  the  car  to  which 
the  accident  occurred,  and  might  have  prevented  it  himself,  by  the  timely 
discharge  of  his  own  duty. 

4.  Because  the  plaintiff,  being  a  tailor  by  trade,  imposed  himself  upon  the 
company  as  a  fireman,  and  tiio  accident  is  attributable  to  bis  own  negligence 
and  want  of  skill. 

5.  Because  it  was  clearly  proved,  that  there  was  no  want  of  skill  or  diligence 
on  the  part  of  the  engineer,  or  other  servants  of  the  company. 

G.  Because  the  accident  itself  was  unavoidable,  and  the  verdict  is  contrary 
to  the  evidence  in  all  these  particulars. 

Col.  Blaxding's  Argument. 
It  is  of  the  utmost  importance  that  the  principle  of  the  case  shoiild  be  settled 
correttly ;  not  so  much  on  account  of  the  railroad,  as  of  the  public  in  general. 
The  company  can  make  its  contracts  with  its  servants  so  as  to  avoid  liability,  if 
this  verdict  should  bo  sustained.  But  this  cannot  be  so  easily  done  by  others 
vrho  come  withiu  the  same  principle.  That  principle,  as  contended  for  by  the 
plaintiff,  I  take  to  be  this:  *that  wherever  an  individual  or  company  of  rsoon 
individuals  employ  several  persons  to  effect  any  operation,  the  mismanage-  '- 
ment  of  one  of  those  persons,  during  the  operation,  by  which  another  of  them  is 
injured,  will  subject  the  employer  to  damages  at  the  suit  of  the  injured  person. 
This  the  defendants  deny,  and  contend  that  wherever  a  company  (or  individual) 
employs  several  persons  to  effect,  by  a  joint  effort,  any  business,  each  person  so 
employed  takes  on  himself  all  the  risks  of  the  service  which  do  not  result  from 
the  mismanagement  or  improper  conduct  of  the  company  itself,  and  each  servant 


254  CHARLESTON,  FEBRUARY,  1841.      VOL.  I.  [*389 

agrees  to  take  on  himself  tlxe  risk  of  all  injuries  to  result  from  the  mismanage- 
ment or  negligence  of  the  other  servants  of  the  company  engaged  in  the  same 
undertaking.  To  illustrate  this  view  of  the  subject,  let  me  state  our  views  a  little 
more  fully.  The  comi>any  are  supposed  to  warrant  that  the  service  is  not  a  more 
dangerous  one  than  it  appears  to  be.  Thus  they  are  supposed  to  warrant  that 
#qqm  the  road  is  in  ordinary  repair ;  that  the  engine  is  a  good  one,  and  that  *the 
■'  engineer  is  competent.     And  if  this  is  not  true,  to  the  knowledge  of  the 

James  Mckray  vs.  The  Railhoad  Company. 

The  evidence  of  William  Johnson,  witness  for  plaintiff. 

The  witness  being  sworn,  says  he  was  present,  and  in  the  employment  of  the 
defendants,  at  the  time  plaintiff  had  his  leg  broken.  It  was  about  the  last  of  May, 
1837.  It  happened  about  thirty-four  miles  this  side  of  Charleston,  near  Four  Hole 
Swamp.  The  witness  was  the  first  fireman,  and  his  position  was  on  the  engine. 
The  engineer,  the  plaintiff,  and  the  witness,  were  on  the  engine  together.  They 
ran  on  very  well  till  they  got  to  the  Four  Hole  Swamji.  When  they  had  got 
within  about  three  hundred  yards  of  being  out  of  the  swamp,  the  witness  saw  a 
horse  standing  by  the  side  of  the  road,  in  the  edge  of  the  swamp,  and  near  the 
commencement  of  the  excavation.  As  soon  as  he  saw  the  horse,  he  asked  the 
engineer  if  he  saw  the  horse — the  engineer  made  no  answer.  They  ran  on,  ap- 
proaching the  horse,  and  the  plaintiff  said  to  the  engineer,  stop,  we  are  in  danger. 
They  ran  on  a  piece  further,  nearer  the  horse,  within  fifty  or  sixty  yards  of  him, 
when  the  witness  put  his  hand  to  the  steam  valve,  and  told  the  engineer  to  stop 
again,  for  there  was  danger  of  running  over  the  horse.  The  engineer  then  shut 
off  the  steam.  By  this  time,  the  horse  stepped  upon  the  road,  and  there  stood — 
the  engine,  with  the  steam  shut  off.  ran  within  six  or  eight  feet  of  the  horse. 
Before,  however,  tlie  engine  got  that  near  the  horse,  the  witness  took  hold  of  the 
awning  post,  and  swung  outside  of  the  engine,  with  one  hand  on  the  awning  post, 
and  one  foot  on  the  foot-board  of  the  engine,  in  a  swinging  position,  for  the  i^iar- 
pose  of  jumping  on  the  left  hand  side  of  the  engine.  The  witness  could  see  the 
front  wheels,  by  looking  under.  As  soon  as  the  engine  struck  the  horse,  it 
knocked  him  down,  his  fore  legs  on  one  rail  and  his  hind  legs  on  the  otl'er.  As 
soon  as  the  hind  or  driving  wheels  struck  the  horse,  the  engine  bounded  up,  and 
tlie  witness  sprang  off  on  the  left  side,  and  the  engine  ran  oil'  on  the  right  side. 
Wlien  the  witness  jumped  off,  the  engineer  was  on  the  right  hand  side  of  the 
engine ;  the  plaintiff  was  standing  between  the  v/itness  and  tlie  engineer,  a  little 
back,  on  the  foot  board  of  the  tender.  As  the  witness  struck  the  ground,  he 
rolled  over  and  over  twice,  and  got  up,  and  went  to  see  what  had  happened.  The 
engineer  asked  him  if  he  was  hurt,  he  said  no — and  asked  if  any  of  them  (the  engi- 
neer and  ))laintiff)  were  hurt;  the  engineer  said  no — the  engineer  then  turned  to 
Ulaintilf,  and  asked  hiiu  to  hand  a  bucket  of  water  to  put  out  the  fire — the  witness 
ran  round  the  head  of  the  engine,  and  as  he  got  round  he  heard  the  plaintifl'  say 
liis  leg  was  broken.  Witness  thinks  if  the  engineer  had  tried  to  stop  the  engine, 
when  he  (the  witness)  first  showed  him  the  horse,  he  might  have  avoided 
the  accident.  The  witness  had  seen  the  engine  stoi>ped  within  a  shorter 
distance.  Tiic  horse  was  not  running.  T/ic  u-itness  is  dccidedli/  of  the  opinion  that 
the  arriilcnt  iras  ocaisioiial  hi/  the  neyliijt.nce  of  the  cnijincer — thinks  the  engine  was 
not  going  over  ten  or  twelve  miles  an  hour,  and  therefore  thinks  the  engine  could 
have  Ixjon  stopped.  When  the  engine  got  within  six  or  eight  feet  of  the  horse, 
the  engin<^<T  gave  h(«r  all  the  steam  she  could  take.  Edward  Perry  was  the  engi- 
neer. Th.'y  had  taken  in  water  once  at  Sunimerville,  in  the  thirty-four  miles— 
they  ha<l  not  taken  in  any  wood.  It  was  either  half-past  eight  or  half-past  nine 
o'clock.  Witness  thinks  wood  onght  to  have  been  taken  in  at  the  nineteen  mile 
poMl.  It  was  the  jiraclice  i>f  the  engineers  to  take  in  water  at  the  twelve  mile 
lK>8t,  at  Snuinicrville,  an<l  at  Inabinct's,  thirty-two  miles  from  town,  if  required. 
Tlio  distance,  liowever,  could  be  run  very  easily  from  Summerville  to  Koss'  Turn 
Out,  tliree  miles  alM)ve  wliere  the  accident  happened.  Witness  thinks  Terry  came 
out  from  N<-w  York  as  a  professional  engineer. 

CroM-e.j:fuimud—'nu->  witness  says  ho  had  been  about  two  months  in  the  service 
of  the  company  aa  a  flremau,  wlicu  the  accident  happened,  and  ha  company  with 


^390] 


MURRAY    VS.   RAILROAD   COMPANY,  255 


company  or  their  chief  agent,  and  the  danger  is  thus  greater  than  the  servant  had 
a  riglit'  to  expect,  and  from  that  cause  he  receives  an  injury,  it  would  seem 
rational  that  the  company  should  be  liable.  But  the  company  cannot  be  sup- 
posed to  warrant  that  each  servant  of  the  company  shall  always  be  watchful,  and 

Perry  about  two  weeks  ;  it  was  the  second  or  third  trip  the  plaintiff  had  made  as 
fireman  in  the  service  of  the  company ;  the  witness  and  the  plaintiff  were  receiv- 
ing a  dollar  a  day  as  firemen.     From  the  time  the  witness  saw  the  horse  till  the 
accident  happened,  the  engine  passed  through  no  excavation ;  when  the  witness 
first  saw  the  horse,  he  was  standing,  feeding  on  the  right  hand  side  of  the  road, 
about  teu  steps  from  it,   and  moving  slowly  towards  the  road;  when  witness 
asked  the  engineer  if  he  saw  the  horse,  he  touched  him  on  the  back  ;  the  en- 
gineer turned  round,  but  said  nothing ;  the  witness  pointed  towards  the  horse ; 
when  the  engineer  shut  off  the  steam,  the  brake  was  not  let  down ;  the  engineer 
gave  no  orders  to  let  down  the  brake,  which  he  generally  does  ;  the  brake  was  on 
the  right  hand  side  of  the  tender,  and  nearer  to  plaintiff  than  to  witness  ;  had 
the  brake  been  let  down  when  the  engineer  shut  off  the  steam,  the  engine  might 
have  been  stopped.     The  witness  was  too  much  agitated  with  fear  at  the  time  to 
think  of  the  brake.     If  the  engineer  had  told  the  plaintiff  to  let  down  the  brake, 
the  witness  covild  have  heard  it.     It  was  not  usual  with  the  witness  to  let  down 
the  brake  unless  ordered  by  the  engineer.     When  witness  first  saw  plaintiff  after 
the  accident,  he  was  standing  holding  to  something  ;  did  not  say  he  was  hurt,  till 
he  attempted  to  get  the  water.     His  leg  Avas  broken  between  the  foot-board  of  the 
tender  and  the  foot-board  of  the  engine,  by  the  former  running  under  the  latter ; 
is  not  certain  whether  they  took  in  water  at  the  station  twelve  miles  from  Charles- 
ton or  not,  but  does  not  think  they  did ;  is  not  certain  whether  they  had  wood 
sufficient  to  carry  them  to  Ross's  or  not,  but  is  certain  they  had  water  enough ; 
the  wood  was  picked,  and  was  nothing  but  chips  and  trash.     The  engine  made 
steam  very  easily.     Thinks  the  engineer's  intention  in  giving  steam  to  the  engine 
within  six  or  eight  feet  of  the  horse,  was  to  go  over  the  horse  quick,  in  order  that 
the  forewheels  might  strike  the  track  on  the  other  side.    After  they  saw  the  horse, 
witness  heard  the  plaintiff'  tell  the  engineer  to  stop,  for  they  were  in  danger.    The 
engineer  said  nothing  from  the  time  the  witness  saw  the  horse  till  the  accident 
happened. 

In  reply — There  were  men  on  the  road  while  the  witness  was  there,  who  com- 
menced as  firemen,  acting  as  engineers,  viz.  :  Alfred  "Weed,  Thomas  Kingdom, 
and  William  Gillespie.  About  a  week  before  the  accident,  Perry  ran  over  a  cow, 
which  in  the  opinion  of  the  witness  might  have  been  avoided.  The  business  of  a 
fireman  is  only  dangerous  when  the  engineer  is  not  careful,  or  when  unavoidable 
accidents  happen.  Coming  out  of  the  Four  Hole  Swamp  there  had  been  an  exca- 
vation, but  the  dii-t  had  been  carried  off.  He  would  not  consider  it  his  duty  to 
put  down  the  brake,  unless  told  to  do  so  by  the  engineer.  It  was  the  first  time 
he  spoke  to  the  engineer  about  the  horse,  he  put  his  hand  on  his  back. 
Sworn  to  before  us  : 

A.  PATTERSON, 
A.  P.  ALDRICH. 

TTie  testimony  of  William  C.  Meeedith,  taken  by  consent,  for  defendants. 

The  witness  being  sworn,  says  : — That  he  was  the  conductor  of  the  train  of  cars, 
on  or  about  the  27th  May,  1837,  when  an  accident  occurred  on  the  railroad,  near 
the  Four  Hole  Swamp.  The  locomotive  and  tender  were  thrown  off"  the  road.  The 
accident  happened  iu  this  way  : — after  passing  through  an  excavation,  the  witness 
saw  a  horse  about  fifteen  yards  from  the  road,  moving  from  behind  some  bushes, 
running  in  an  oblique  diroetion  towards  the  road,  and  in  the  direction  the  cars 
were  going.  The  horse  ran  thus  about  twenty  yards,  when  he  leaped  between  the 
rails  of  the  road,  just  at  the  commencement  of  another  excavation,  and  where  the 
rails  were  even  with  the  ground,  or  what  is  call  a  surface  road.  As  the  liorso 
leaped  between  the  rails,  the  engine  caught  him,  ran  over  him,  and  was  thrown  off 
the  track,  as  above  mentioned.  The  witness  was,  at  the  time,  standing  on  the 
foot-board  of  the  hindmost  car,  when  he  first  saw  the  horse,  and  until  the  engine 


256  CHARLESTON,  FEBRUARY,  1841.      VOL.  I.  [*390 

that  no  servant  shall  be  injured  by  the  negligence  of  another.  Now,  if  this  be 
not  the  true  doctrine,  some  case  can  be  found  where  the  employer  has  been  made 
liable  at  the  suit  of  one  servant  for  the  negligence  of  another,  by  which  he  has 
been  injured.     These  accidents  have  been  numerous.     They  have  for  ages  been 


was  thrown  oflF  the  road — on  the  same  side  the  engine  was  thrown  off,  and"  on  which 
the  horse  approached  the  road,  and  saw  distinctly  what  he  has  stated.  There 
were  from  seven  to  nine  cars  in  the  train,  and  where  the  witness  stood,  was  from 
one  hundred  and  ten  to  one  hundred  and  fifty  feet  from  where  the  engine  stood, 
and  the  train  was  moving  at  the  rate  of  from  sixteen  to  twenty  miles  an  hour — the 
train  was  on  ground  a  little  ascending.  To  check  the  engine,  it  is  the  duty  of  the 
engineer  to  close  the  valve,  and  duty  of  the  fireman  to  let  down  the  brake — the 
witness  was  not  in  a  position  to  see  whether  this  was  done,  but  thinks  the  valve 
was  not  closed  till  the  horse  crossed  the  road.  When  the  witness  first  saw  the 
horse,  he  thought  the  only  chance  to  avoid  coming  in  contact  with  liim,  was  to  out 
run  him,  and  was  of  that  opinion  till  the  collision  took  place.  The  witness  does 
not  know  whether  the  brake  was  down.  Mr.  W.  E.  Perry  was  the  engineer,  and 
Wm.  Johnson  and  the  plaintiff  were  firemen.  The  witness  does  not  know  when 
the  engineer  first  saw  the  horse.  At  the  time  the  accident  occurred,  the  plaintiff 
was  standing,  either  in  the  tender,  or  on  the  foot-board  of  the  engine  ;  that  was 
his  proper  place.  The  plaintiff  was  not  a  passenger,  he  was  in  the  service  of  the 
company  as  a  fireman. 

Cross-examined. — The  witness  says,  the  engineer  might  have  seen  the  horse 
.sooner  than  he  did.  The  position  of  the  engineer  was  a  foot,  or  a  little  more, 
higher  than  that  of  the  witness.  The  witness  thinks,  if  the  engineer  had  seen  the 
horse  one  hundred  and  fifty  feet  sooner  than  he  did,  he  might  have  so  retarded  the 
engine,  as  to  have  permitted  the  horse  to  outrun  it.  The  hollow  between  the  two 
excavations,  is  from  sixty  to  one  hundred  yards  wide.  The  horse  might,  by  leap- 
ing both  rails,  have  crossed  the  road  from  five  to  ten  yards  before  entering  the  ex- 
cavation. In  the  deepest  part  of  the  hollow,  the  rails  are  not  more  than  three  feet 
from  the  ground  ;  the  distance  the  engines  at  that  time  were  instructed  to  go,  was  not 
to  exceed  fifteen  miles  an  hour,  as  near  as  could  be  made.  Thinks  it  waG  possible 
for  the  engineer  to  have  seen  the  horse  before  he  got  out  of  the  first  excavation. 
The  engineer  has  the  control  of  the  firemen.  If  the  engineer  wishes  to  stop  the 
engine,  lie  must  tell  the  fireman  to  let  down  the  brake.  It  is  easier  to  stop  the 
engine  on  an  ascent,  than  on  a  descent.  At  the  speed  the  engine  was  going  at 
that  time,  and  at  that  place,  she  could  not  have  been  stopped  under  one  hundred 
yards.  She  could  not  have  been  stopped  between  the  two  excavations,  but  she 
might  have  been  so  retarded,  that  the  horse  might  have  avoided  it.  The  valve 
was  not  closed  till  the  horse  crossed  the  rail.  Perry  was  said  to  be  a  professional 
engineer  ;  he  ran  very  well  to  the  place  the  accident  happened.  The  witness  did 
say  that  he  would  not  go  on  the  train  when  Perry  was  the  engineer ;  the  witness 
.said  tliis,  because  he  thought  Perry  ran  faster  than  he  ought  to  do,  over  certain 
parts  of  the  road ;  did  not  think  he  had  been  long  enough  on  the  road  to  be  safe. 
Ho  appeared  to  be  cautious  enough  ;  heard  of  his  having  run  over  a  cow.  Mr. 
Perry  took  in  wood  twice  between  (Jharleston  and  the  place  where  the  accident 
happ(Mied  ;  the  distance  is  about  thirty-four  miles.  It  is  not  usual  to  take  in  wood 
and  water  at  each  station.  The  witness  cannot  attach  blame  to  any  jierson  for 
the  accident,  from  the  facts  coming  within  his  knowledge.  If  Perry  saw  the  horse 
time  enough  to  stop,  he  was  to  blame ;  but  whether  lie  did  see  tlie  horse  in  time, 
the  witness  cannot  say.     The  engine  was  good — Ih-st  rate. 

In  Rc.jili/. — The  witness  acted  as  a  conductor  twenty-one  or  twenty-two  months. 
If  an  engineer  is  attentive  to  his  duty,  he  has  not  much  time  to  look  around,  or 
notice  objects  on  either  side  of  the  road.  It  is  his  duty  to  notice  the  road  ahead, 
and  the  luadiinery. 

Tlie  witness  thinks  there  was  wood  enough  aboard  to  carry  the  train  to  the  next 
station.  As  to  water  he  cannot  say,  as  he  knows  nothing,  as  the  water  pipes  were 
broken  off. 

Sworn  to  before  us  :  A.  PATTIvRSON, 

A.  P.  ALDKICH. 


^390] 


MURRAY    7-.^.    RAILROAD    COMPANY.  257 


of  daily  occurrence.  The  blacksmitli,  the  carpenter,  the  ship  ovnier,  in  fa(;t,  in 
every  occupation,  where  a  joint  effort  is  required  to  jierform  any  i)iece  of  Vmsiness, 
the  employer  intrusts  many  to  effect  it ;  and  every  day  it  happens  that  some  one 
of  them  is  injured  by  the  nef?Iig(;nce  of  another.  Yet  no  case  can  be  found  where 
it  was  ever  imagined  tliat  the  eniph^yer  *was  liable  for  such  an  injury,  r^^oq-i 
And  this  would  seem  to  put  the  question  to  rest.  For  no  reason  can  l>e  ■- 
assigned  why  a  railroad  company  should  be  subject  to  a  rule  which  does  not 
api)ly  to  every  company  or  individual  wlio  engages  many  about  the  same  busi- 
ness. If  no  sailor  ever  recovered  against  the  owners,  for  an  injury  occasioned  by 
the  negligence  of  the  master,  mate,  or  other  sailors;  if  one  journeyman  black- 
smith never  recovered  against  his  employer  for  a  burn  by  the  carelessness  of  his 
co-journeyman ;  or  if  no  instance  can  be  found  where,  in  all  the  various  avoca- 
tions of  life,  the  principal  has  been  held  liable  to  any  of  his  agents  for  an  injury 
by  liis  co-agent,  it  may  be  well  asked,  why  a  railroad  company  should  be  made 
tlius  liable. 

The  principle,  as  applicable  to  these  cases,  where  one  man  or  a  company  is  to 
be  made  liable  for  the  act  of  another  person,  is  this :  that  no  one  shall  be  liable 
for  another's  act,  except  he  has  commanded  it,  or  "has  agreed  to  be  so  liable  ;  or 
where  such  liability  has  been  imposed  on  him  by  law,  from  principles  of  policy, 
or  for  the  public  security." 

*iS'ow,  it  will  hardly  be  supposed  that  in  this  case  the  company  can  be  r*ono 
charged  with  an  express  or  implied  command  to  break  the  plaintiff's  leg,    '- 
or  that  the  company  ever  agreed  to  be  liable  for  the  act.     If  they  are  liable  at  all, 
it  must  be  on  principles  of  policy,  or  for  the  public  security. 

Now,  let  us  see  how  far  the  public  security  would  be  promoted  by  making  the 
comx^any  liable  to  all  its  servants  for  injuries  they  may  sustain  by  the  negligence 
of  their  co-scrvants.  The  public  security  requires  that  every  possible  motive 
should  be  held  out  to  every  person  engaged  in  running  a  train  of  cars,  to  use  the 
utmost  care ;  that  each  should  see  that  every  other  person  engaged  in  the  service 
does  so  ;  that  every  other  person  is  competent  to  his  post,  and  that  the  road, 
engine  and  cars  are  in  safe  order.  Whatever  j)rinciple  is  best  calculated  to  secure 
to  the  public  all  this,  is  that  which  the  Court  should  adopt.  If  this  will  be  best 
promoted  by  making  each  person  engaged  in  running  the  train  risk  all  injuries  he 
may  receive,  without  resort  to  his  employer,  then  he  should  be  excluded 
*from  such  resort.  If  want  of  such  resort  would  make  him  more  careful  pKonQ 
himself,  make  him  urge  others  acting  with  him  to  more  care,  M^ould  induce  '- 
him  never  to  act  but  with  those  whom  he  knows  to  be  competent,  prudent,  and 
careful,  it  is  believed  that  the  public  would  find  security  in  it.  Now,  it  is  very 
certain  that  where  he  is  denied  all  recourse,  he  will  risk  less  than  where  he  ex- 
pects a  pension  for  life,  or  a  sum  in  gross,  for  any  injury  he  may  receive  in  the 
service. 

This  view  of  the  case,  it  appears  to  me,  is  sufficient  to  establish  the  rule,  that 
every  person  who  enters  into  the  service  of  a  railroad  company  takes  upon  him- 
self the  risk  of  all  injuries  he  may  sustain  from  the  ignorance  of  the  servants  of 
the  company  who  are  engaged  in  conducting  the  train  of  cars,  and  that  the 
security  of  the  public  requires  the  adoption  of  this  principle. 

If,  in  ordinary  joint  efforts,  when  only  the  interest  of  the  company  is  coiicerned, 
no  case  can  be  found  where  it  has  been  decided  that  the  principal  shall  be  liable 
to  one  of  his  ^servants  for  the  negligence  of  another,  how  much  stronger  is  r^'yaA 
the  reason  for  adopting  the  same  rule  in  this  case,  where  the  safety  and  '- 
life  of  passengers  are  promoted  and  secured  by  it,  and  where  a  different  rule 
would  greatly  diminish  that  security. 

Let  us  compare  the  case  of  the  injury  sustained  by  a  servant  of  the  company, 
from  the  negligence  of  its  agents  in  concert  with  him,  with  the  case  of  injuries 
received  from  similar  negligence  by  strangers,  passengere,  or  freighters. 

The  liability  of  the  com})any  for  the  loss  or  damage  to  goods  it  takes  to  carry, 
is  founded  on  principles  of  public  policy.  As  common  carriers,  the  company  is 
liable  for  all  losses,  except  from  the  act  of  God,  or  the  enemies  of  the  country, 
even  when  there  is  no  negligence,  and  the  principle  in  that  case  has  no  analogy  to 
the  one  before  us. 

In  case  of  injury  to  passengers,  the  rule  is  different,  and  the  company  is  liable 
YOL.  1.— 18 


258  CHARLESTON,  FEBRUARY,  1841.      VOL.  L  [*394 

for  all  injuries  to  tliem  which  arise  from  any  negligent  act  of  the  agents  of  it. 
^oqr-i  The  difference  in  that  *case  from  ours  is  most  striking.  The  passenger paz/s 
J  the  company  for  carrying  him.  The  agent  or  servant  is  paid  by  the  com- 
pany. The  passenger  has  nothing  to  do  in  running  the  train,  and  if  he  should 
interfere,  he  would  not  only  lose  his  claim  on  the  company,  but  might  be  made 
liable  to  it  in  case  an  injury  should  happen.  The  agent  or  servant  is  bound  to 
act,  and  act  faitlifuUy,  and  to  see  that  others  engaged  with  him  do  so  ;  or  at  least 
is  bound  to  inform  his  employers,  if  he  sees  negligence  in  others.  The  passenger 
can  know  nothing  of  the  condition  of  the  road,  or  works,  or  machinery,  and  has 
to  trust  for  his  security  to  his  right  to  recover  damages  if  he  is  injured.  He  has 
no  information  as  to  the  competency,  skill,  or  prudence  of  those  who  drive  the 
train.  But,  on  all  these  matters,  the  agents  or  servants  of  the  company  may  be 
informed  before  they  enter  the  service.  With  such  a  difference  of  information, 
and  condition,  it  would  be  extraordinary  if  the  same  principle  should  apply  to 
both.  If  the  company,  then,  are  liable  to  the  passengers  only  for  the  misconduct 
*^Qfll  ^^  negligence*  of  its  agents,  what  is  the  extent  of  its  liability  to  its  serv- 
■'  ants  for  injuries  sustained  in  conducting  the  train?  Not  for  such  as  re- 
sult from  negligence  or  misconduct  of  those  with  whom  they  act,  but  simply,  as  I 
have  before  stated,  for  such  injuries  as  they  sustain  from  being  placed  in  a  more 
dangerous  service  than  that  on  which  they  agreed  to  enter.  If  the  servant  has 
been  deceived  by  the  company  as  to  the  nature  of  the  service,  and  is  injured,  the 
company  would  be  liable.  As  to  the  competency  or  care  of  those  with  whom  he 
acts,  he  has  the  same  means  of  information  that  the  company  possesses,  and 
oftentimes  much  greater ;  and  when  the  persons  who  are  to  conduct  the  train 
enter  on  the  service,  policy  requires  that  they  should  be  sureties  for  each  other  ; 
so  far,  at  least,  as  to  exempt  the  company  from  any  responsibility  for  injuries 
which  one  may  receive  from  the  carelessness  of  another.  The  rule  as  to  sailors 
goes  further  than  this.  The  owners  of  the  ship  are  not  liable  to  the  sailors  for 
injuries  they  may  receive  in  the  service,  howsoever  they  may  happen  ;  but  if  the 
ship  is  lost,  they  forfeit  their  wages,  nor  can  they  recover  them  but  on  full  proof 
tliat  the  loss  was  occasioned  by  the  negligence  of  the  master.  To  save  this  for- 
feiture, they  may  prove  negligence  in  the  agent  of  the  owners,  but  there  has 
never  been  a  case  in  which  it  has  been  permitted  to  show  such  negligence  to 
cliarge  the  owners  mth  any  injury  the  sailors  may  have  received  from  it. 

But  it  may  be  said  that  the  rule  which  applies  where  a  stranger  is  injured  by 
the  agent  by  a  neglig(;nt  performance  of  his  service,  should  be  adopted.  Here, 
tlie  rule  is,  that  a  wilful  act  by  the  servant,  by  which  a  stranger  is  injured,  will 
not  charge  the  master  or  employer.  The  act  must  be  done  strictly  in  performance 
of  the  service  of  the  principal,  or  he  is  not  liable,  for  he  cannot  be  presumed  to 
-have  ordered  any  other.  And  the  rule  is  carried  very  far,  where  the  principal  is 
presumed  to  have  ordered  his  negligent  acts.  But  the  rule  is  not,  perhaps, 
founded  on  such  presumption,  but  on  the  principle  that  the  public  security  re- 
quires that  tl)e  emi)loyer,  having  engaged  the  agent,  and  placed  him  in  a  situation 
whore  liis  negligence  may  cause  injury  to  others,  shall  respond  to  the  person 
injured,  and  not  leave  him  for  redress  to  one  who  is  wholly  irresponsible.  It  can 
bo  sustained  on  no  other  principle.  Now,  how  far  does  this  rule  apply  to  our 
*397]  ^'^^^  ^  '^'^*^  co-servant*  who  may  be  injured  is  employed  to  act  with  the 
person  from  whose  negligence  the  injury  has  arisen.  He  chooses  his  situ- 
ation, and  witl)  whoni  he  is  to  act.  They  are  all  employed  in  a  common  cause, 
anil  must  share  the  connnon  risk.  They  must  look  to  each  other  for  protection 
and  safety,  and  1)e  thence  induced  to  stimulate  each  other  to  care  and  diligence, 
niirl  ].r.-v.'nt,  by  the  (efforts  of  one,  the  consequences  of  the  negligence  of  another. 
On  this  tlie  public  security  dei)ends,  and  it  would  be  greatly  endangered  were  a 
different  principle  adopted. 

Let  us  consider  the  case  in  one  other  respect.  When  an  injury  of  this  kind 
liax  haf.p<-nc<I,  tlien,  will  always  bo  a  conllict  of  testimony  as  to  tlie  nature  of  the 
at!t  that  wcasion.'d  it.  Was  it  tlie  result  of  a  mere  mistake  of  judgment,  of  sheer 
neglect,  or  of  wilful  luismanagemeiit ;  or,  by  whom  was  it  caused,  and  the  share 
of  participation  each  lia<l  in  it?  The  agents  of  the  company  are  the  witnesses, 
and  m  siicJi  a  conllict  tlicre  is  great  danger  that  every  accident,  even  when 
occasioned  by  the  party  injured,  will  bo  visited  on  the  company.     In  this  case,  the 


*397]  MURRAY   VS.    RAILROAD    COMPANY.  259 

evidence  is  as  strong  that  the  negligence  of  the  plaintiff,  in  not  patting  down  the  ' 
brake,  was  the  cause  of  the  accident,  as  that  it  was  owing  to  the  negligence  of  the 
conductor  of  the  train.  On  principles  of  i^olicy,  this  investigation  should  never 
be  allowed,  where  an  injury  has  been  sustained  by  one  who  is  bound  in  common 
with  others  to  prevent  the  accident  by  which  it  was  occasioned.  And  this  can  be 
done  only  by  this  Court  declaring  that  every  person  who  engages  to  unite  in 
conducting  a  train  of  cars,  takes  upon  himself  the  risk  of  all  injuries  which  mny 
result  from  the  negligence  or  misconduct  of  those  with  whom  he  is  united  in 
that  service. 

If  this  view  of  the  case  be  correct,  the  inquiry  is  ended,  and  the  Court  may 
grant  a  new  trial  or  a  nonsuit,  for  the  right  of  the  plaintiff  to  recover  is  defeated 
on  his  own  showing. 

But  if  I  have  mistaken  the  principle,  and  among  the  risks  against  which  the 
company  warrant,  is,  that  no  person  engaged  in  conducting  a  train  shall  be 
injured  by  the  negligence  of  another  in  the  same  service ;  yet,  the  testimony  will 
not  support  the  verdict.  The  whole  occurrence  took  place  in  less  than  ten  seconds. 
What  was  the  most  projier  course  to  be  pursued  in  such  an  emergency,  was  one 
of  doubt  and  uncertainty,  on  which  an  immediate  decision  was  to  be  made.  The 
conductor  *of  the  train  decided,  and  the  injury  happened.  Now,  if  the  r^oqo 
Court,  on  reviewing  the  testimony,  cannot  discover  that  there  was  sufficient  '■ 
evidence  to  warrant  the  jury  in  saying  that  the  conductor  decided  wrong,  not 
merely  as  a  mistake  of  judgment,  but  from  a  negligent  disregard  to  his  duty,  a 
new  trial  must  be  granted.  For  without  such  evidence,  on  no  principle  can  the 
company  be  made  liable. 

Curia,  per  Evans,  J.  In  the  consideration  of  the  question  involved 
in  this  case,  I  shall  assume  that  the  verdict  establishes  the  fact  that  the 
plaintiff's  injury  was  the  effect  of  the  negiigence  of  the  engineer,  and  then 
the  question  arises  whether  the  railroad  company  is  liable  to  one  servant 
for  an  injury  arising  from  the  negligence  of  another  servant.  The  busi- 
ness of  the  company  is  the  transportation  of  goods  and  passengers.  Its 
liability  in  these  respects,  is,  in  general,  well  defined  and  understood  by 
the  profession  ;  and  if  the  plaintiff's  case  came  within  any  of  the  princi- 
ples applicable  to  these  cases,  we  should  have  no  difficulty  in  deciding  it. 
The  application  of  steam  power  to  transportation  on  railroads,  is  of  recent 
origin,  but  the  principle  by  which  the  liability  of  a  carrier  is  fixed  and 
ascertained,  is  as  old  as  the  law  itself.  There  is  nothing  in  the  fact,  that 
the  defendant  is  a  corporation,  except  that  of  necessity  it  must  act  alto- 
gether by  agents.  The  liability  is  precisely  the  same  as  if  the  defendant 
"was  an  individual  acting  by  the  agency  of  others.  The  principle  is  the 
same,  whether  you  apply  it  to  a  railroad,  a  steamboat,  a  wagon,  a  stage 
coach,  or  a  ship.  If  this  i)laintiff  is  entitled  to  recover,  I  can  see  no 
reason  why  the  owner  of  any  of  the  above  modes  of  conveyance,  should 
not  be  liable  under  the  same  circumstances.  If  the  owner  of  a  wagon 
should  employ  two  men,  one  to  drive  and  the  other  to  load,  and  cither 
of  them  should  so  negligently  perform  his  work  as  to  injure  the  other,  the 
owner  of  the  wagon  would  be  liable.  The  principle  will  extend  to  all 
the  vocations  of  life  wherein  more  than  one  person  is  employed  to  effect 
a  single  object ;  and  a  new  clnss  of  liabilities  would  arise,  which  I  do  not 
think  has  ever  heretofore  been  supposed  to  exist.  It  is  admitted,  no  case 
like  the  present  has  been  found,  nor  is  there  any  precedent  suited  to  the 
plaintiff's  case,  unless  he  stands  in  the  relation  of  a  passenger  to  the 
company.  In  this  j)oint  of  view,  liis  counsel  has  chosen  to  regard  him, 
for  I  ^understand  the  declaration  alleges  he  was  a  passenger.  r;^oqq 
Now,  a  passenger  is  every  where  spoken  of  as  one  who  pays  for  '- 


260  CHARLESTON,  FEBRUARF,  1841.       VOL.  I.  [*399 

"transportation.  In  all  the  operations  necessary  for  this,  ho  is  passive. 
The  raoment  he  ])ecomes  an  operator,  for  then  his  character  is  changed, 
he  becomes  the  servant  of  the  company,  and  not  its  passenger.  It  would 
be  a  confusion  of  terms  so  to  regard  him.  lie  is  no  more  a  passenger 
than  a  sailor  or  a  stage  driver.  There  is  nothing  in  the  definition  of 
bailment,  or  the  classification  of  the  different  kinds  of  liability  growing 
out  of  that  relation,  which  applies  to  the  plaintiff's  case,  and  if  he  is 
entitled  to  recover,  it  must  be  on  principles  which  apply  equally  to  all 
operations  of  life  in  which  agents  are  employed.  There  is  no  question 
that,  in  general,  the  principal  is  liable  for  the  acts  of  the  agent,  performed 
in  the  execution  of  his  agency,  or  in  and  about  the  business  of  his  prin- 
cipal. Thus,  the  owners  of  a  railroad  would  be  liable  to  passengers  for 
an  injury  sustained  by  the  negligence  of  any  of  its  servants,  superior  or 
subordinate,  because  it  is  implied  in  the  undertaking  to  carry,  not  only 
that  the  road  and  cars  are  good,  but  that  the  servants  employed  are 
C'»mpetent  and  will  perform  their  duty.  For  the  loss  of  goods,  the  law 
annexes  a  still  greater  responsibility.  So,  also,  if  one  employ  an  agent 
to  execute  any  work  whereby  an  injury  may  result  to  a  stranger,  the  law 
requires  it  to  be  done  with  care,  and  if  a  stranger  sustain  an  injury,  his 
])rincipal  is  liable,  as  was  decided  in  O^Gonnell  \s.  Strong,  (Dud.  Rep. 
2G5.)  But  the  plaintiff  is  neither  a  passenger  nor  a  stranger,  and  if  he 
can  recover,  it  must  be  in  his  hermaphrodite  character  as  a  passenger 
fireman.  In  the  cases  above  enumerated,  the  principal  is  represented  by 
the  agent,  and  unless  he  his  liable,  the  great  operations  of  life  cannot  be 
carried  (ui — no  man  would  have  adequate  security  for  his  person  or  his 
l)roperty.  The  owner  of  goods  would  not  trust  them  on  a  railroad,  or  a 
steamboat,  if  his  only  security  was  the  liability  of  the  mere  servants 
cmi)loycd.  No  passenger  would  commit  his  safety  to  a  railroad,  steam- 
boat, or  stage  coach,  if,  in  case  of  injury,  he  could  look  to  none  but  the 
agents  usually  employed  about  these  modes  of  transportation.  So,  also, 
no  man  would  have  any  guarantee  for  the  security  of  his  property,  if  his 
<inly  remedy  for  negligence  was  the  irresponsible  or  insolvent  agents 
which  aiifither  might  employ.  In  all  these,  and  similar  cases,  the  reasons 
*4001  ^^  ^'^^  liability  of  the  *i)rincipal  are  clear,  and  the  law  books  are 
-I  full  of  cases  or  precedents  which  apply  to  them  ;  but  it  is  not  so 
with  the  plaintiff's  case;  there  is  neither  authority  nor  precedent  for  it. 

It  was  said,  in  the  argument,  that  if  the  engineer  had  been  the  owner 
of  the  road,  he  would  have  been  liable.  Of  this  I  apprehend  there 
would  have  been  no  doubt,  but  then  his  liability  would  have  arisen,  not 
from  his  being  the  owner,  but  because  the  injury  arose  from  his  own  act. 
That  lie  is  now  liable,  seems  to  me  to  admit'of  no  doubt.  But  it  by  no 
means  follows  as  a  consequence,  that  because  he  is  liable,  those  who 
employ  him  are  liable  also.  One  acting  as  agent  nuiy  subject  himself  to 
lial)ility  in  a  variety  of  eases,  for  which  his  principal  would  not  be  liable  ; 
and  this  may  l)e  as  well  in  cases  of  contract  as  in  cases  of  tort.  The  extent 
oftlK-  liability  of  the  principal,  for  the  acts  of  the  agent,  can,  in  general, 
be  rcaddy  asccrlained  from  the  object  of  the  contract,  and  the  relative  posi- 
tion of  I  lie  parties.  A  i»assenger  desires  to  be  transported  from  one  place 
to  another ;  the  carrier  m;dertakes  to  do  this,  and  is  liable  if  he  fails.  It 
IS  wholly  immaterial  by  whose  default  the  injury  resulted.  There  has 
been  a  breach  of  the  contract,  and  he  has  a  right  to  look  to  him  with 


*400]  MURRAY    VS.    RAILROAD    COMPANY.  261 

whom  his  contract  was  made.  With  the  plaintiff,  the  defendants  con- 
tracted to  pay  hire  for  his  services.  Is  it  incident  to  this  contract  that 
tlie  company  should  guarantee  him  against  the  negligence  of  his  co-ser- 
vants ?  It  is  admitted  he  takes  upon  himself  the  ordinary  risks  of  his 
vocation;  why  not  the  extraordinary  ones?  Neither  are  within  his 
contract — and  I  can  see  no  reason  for  adding  this  to  the  already  known 
and  acknowledged  liability  of  a  carrier,  without  a  single  case  or  i)recedent 
to  sustain  it.  The  engineer  no  more  represents  the  company  than  the 
plaintiff.  Each  in  his  several  department  represents  his  principal.  The 
regular  movement  of  the  train  of  cars  to  its  destination,  is  the  result  of 
the  ordinary  performance,  by  each,  of  his  several  duties.  If  the  fireman 
neglects  his  part,  the  engine  stands  still  for  want  of  steam ;  if  the  engineer 
neglects  his,  everything  runs  to  riot  and  disaster.  It  seems  to  me,  it  is, 
on  the  part  of  the  several  agents,  a  joint  undertaking,  where  each  one 
stipulates  for  the  performance  of  his  several  part.  They  are  not  liable 
to  the  company  for  the  conduct  of  each  other,  nor  is  the  company  liable 
to  one  for  the  misconduct  of  another;  and,  as  a  general  rule,  I  would 
*say,  that  where  there  was  no  fault  in  the  owner,  he  would  be  r^AQ] 
liable  only  for  wages  to  his  servants ;  and  so  far  has  this  doctrine  ^ 
been  carried,  that  in  the  case  of  seamen,  even  wages  are  forfeited  if  the 
vessel  be  lost,  and  no  freight  earned. 

In  the  above  observations,  I  have  endeavored  to  confine  myself  strictly 
to  the  case  before  the  Court.  It  is  not  intended  to  pre-judge  other 
questions,  which  may  arise  between  the  company  and  its  servants ;  nor 
do  I  mean  to  say,  that  a  case  may  not  occur  where  the  owner,  whether 
an  individual  or  company,  will  be  liable  for  the  acts  of  one  agent  to 
another ;  but  then  it  must  be  in  such  cases  as  where  the  owner  employs 
unfit  and  improper  persons  as  agents,  by  whose  ignorance  or  folly  another 
is  injured.  Upon  such  a  case  it  will  be  time  enough  to  express  an 
opinion  when  it  arises.  The  present  is  not  such  a  case.  The  engineer, 
according  to  the  evidence  was  competent,  though  he  may  have  been  rash 
in  the  particular  instance  in  which  the  plaintiff's  injury  was  sustained. 
He  was  known  to  the  plaintiff  as  well  as  to  the  company,  for  it  appears 
by  the  report  that  he  selected  the  engineer  under  whom  he  was  willing 
or  prepared  to  serve.  It  seems  to  me  the  plaintiff  is  not,  therefore, 
entitled  to  retain  his  verdict,  and  a  motion  for  a  new  trial  is  granted. 

Richardson,  Earle,  Butler,  Harper,  Dunkin,  JJ.  and  CO.,  con- 
curred. 

Johnson,  Chancellor.  I  concur  in  this  opinion,  and  will  only  add  a 
word  in  illustration  of  ray  own  views  of  the  question. 

The  foundation  of  all  legal  liability,  is  the  omission  to  do  some  act 
which  the  law  commands,  the  commission  of  some  act  which  the  law  pro- 
hibits, or  the  violation  of  some  contract  by  which  the  party  is  injured. 
There  is  no  law  regulating  the  relative  duties  of  the  owners  of  a  steam 
ear,  and  the  persons  employed  by  them  to  conduct  it.  The  liability,  if 
any  attaches,  must  therefore  arise  out  of  contract.  What  was  the  con- 
tract between  these  parlies?  The  plaintiff,  in  consideration  that  the 
defendants  would  ])ay  him  so  much  money,  undertook  to  perform  the 
service  of  fireman  on  the  train.  This  is  all  that  is  expressed.  Is  there 
anything  more  implied  ?     Assuming  that  the  injury  done,  was  in  conse- 


262  CHARLESTON,  FEBRUARY,  1841.      YOL.  I.  [*401 

qneuce  of  the  negligence  of  the  engineer,  the  defendants  would  not  be 
liable,  *unles5  they  undertook  to  answer  for  his  diligence  and  skill. 
''^O^J  jg  ^j^^j.  JQjpiigj  ?  I  think  not.  The  law  never  implies  an  obliga- 
tion in  relation  to  a  matter  about  which  the  parties  are  or  may,  with 
proper  diligence,  be  equally  informed.  IS'o  one  will  ever  be  presumed  to 
undertake  for  that  which  a  common  observer  would  at  once  know  was 
not  true.  The  common  case  of  the  warranty  of  the  soundness  of  a  horse, 
notoriously  blind,  may  be  put  in  illustration.  The  warranty  does  not 
extend  to  the  goodness  of  the  eyes,  because  the  purchaser  knew  or  might 
have  known,  with  proper  care,  that  they  were  defective. 

Now  the  plaintiff  knew  that  he  was  not  to  conduct  the  train  alone. 
He  knew  that  he  was  to  be  placed  under  the  control  of  the  engineer.  He 
knew  that  the  employment  in  which  he  was  engaged  was  perilous,  and 
and  that  its  success  was  dependent  on  the  common  efforts  of  all  the 
hands  ;  and,  with  proper  diligence  and  prudence,  he  might  have  been  as 
well,  and  it  does  not  follow  that  he  might  not  have  been  better,  informed 
than  the  defendants,  about  the  fitness  and  security  of  all  the  appointments 
connected  with  the  train.  If  he  was  not,  it  was  his  own  want  of  pru- 
dence, for  which  defendants  are  not  responsible.  If  he  was  he  will  be 
presumed  to  have  undertaken  to  meet  all  the  perils  incident  to  the 
em])loyment. 

There  is  not  the  least  analogy  between  this  case  and  that  of  common 
carriers  of  goods  or  transporters  of  persons.  They  are  liable  in  respect  to 
the  price  paid.  Not  so  here.  The  plaintiff  paid  nothing  for  his  trans- 
portation ;  on  the  contrary,  he  was  to  be  paid  for  his  labor,  and  for  the 
]ierils  to  which  he  was  exposed,  as  incident  to  his  employment.  No 
jirudent  man  would  engage  in  any  perilous  employment,  unless  seduced 
by  greater  wages  than  he  could  earn  in  a  pursuit  unattended  by  any 
unusual  danger. 

O'Neall,  J.,  dissenting.  This  case  was  tried  by  myself,  and  although, 
had  I  been  on  the  jury,  I  should  have  found  for  the  defendants,  yet  there 
were  certainly  facts  in  the  evidence,  which  might  have  led  another  to  a 
different  conclusion  ;  and,  therefore,  I  am  not  disposed  to  disturb  the 
verdict.  This  makes  it  necessary  to  consider  the  legal  doctrine  which  I 
laid  down  to  the  jury. 

*4031  ^^  substance,  I  held,  that  if  the  injury  to  the  plaintiff  resulted* 
from  the  negligence  of  the  engineer,  then  the  plaintiff  was  entitled 
to  recover.  This  doctrine,  a  large  majority  of  my  brethren  think  erroneous, 
and  however  much  deference  is  due  to  their  oi)inions,  yet,  as  I  consider 
tlicm  to  be  wrong,  I  think  it  my  duty  to  state  my  own  views. 

This  case  is  one  of  the  first  arising  out  of  the  conveyance  of  human 
beings  l)y  locomotives  on  railroads.  It  goes  beyond  the  ordinary  case  of 
ti  l)asscnger,  and  i)resents  a  claim  on  the  part  of  a  hired  servant,  against 
his  employers,  for  an  injury  sustained  in  their  service.  If  it  arose  out  of 
any  of  the  old-fashioned  modes  of  conveyance,  managed  by  the  defendants 
themselves,  could  there  be  a  doubt  that  they  would  be  liable,  if  the  injury 
resulted  from  negligence  ?  Take  the  case  of  a  stage  coach,  driven  by  the 
owner,  and  let  it  ha  supposed  that  the  plaintiff  was  hired  as  a  guard,  and 
that  he  was  injured   in  that  employinent,  by  the  careless  driving  of  the 


*403] 


MURRAY   VS.    RAILROAD    COMPANY.  263 


defendant,  wlio  would  hesitate  to  say  tliat  lie  was  entitled  to  recover  ? 
No  one  who  had  a  proper  regard  to  legal  principles. 

Is  there  any  distinction  in  law  as  to  the  effect  which  the  employment 
of  the  ])laintiff  is  to  have,  in  the  different  kinds  of  service  in  which  he  may 
engage  ?  I  think  there  is  none.  If  Mr.  Tupper,  the  able  and  efficient 
officer  of  the  company,  had,  in  person,  managed  the  engine,  and  the 
plaintiff  had  been  injured  by  his  carelessness,  I  would  most  respectfully 
ask,  how  could  it  be  pretended  that  the  company  was  not  liable  ? 

I  admit  here,  once  and  for  all,  that  the  plaintiff,  like  any  other  servant, 
took,  as  consequence  of  his  contract,  the  usual  and  ordinary  risks  of  his 
employment.  What  is  meant  by  this  ?  No  more  than  that  ho  could  not 
claim  for  an  injury,  against  which  the  ordinary  prudence  of  his  employers, 
their  agents  or  himself,  could  provide.  Whenever  negligence  is  made 
out  as  the  cause  of  injury,  it  does  not  result  from  the  ordinary  risks  of 
employment. 

How  far  are  the  defendants  liable  for  the  acts  of  the  engineer  ?  In  the 
language  used  in  Bacon's  Abridgment,  Tit.  Master  and  Servant,  letter 
R.,  "  it  is  highly  reasonable  that  they  should  answer  for  such  substitute, 
at  least  civiliter ;  and  that  his  acts,  being  pursuant  to  the  authority 
given  him,  should  be  deemed  the  acts  of  the  master."  Now,  to  this 
authority,  it  will  not  do  to  say  the  defendants  did  not  authorize  the 
engineer  *to  run  his  engine  so  carelessly  as  to  injure  the  plaintiff,  r^  i  a  i 
They  put  him  in  command  of  it,  and  authorized  him  with  it  to  run  '- 
the  road.  If,  in  the  doing  of  this  act,  which  is  according  to  their 
authority,  he  acts  negligently,  then  they  are  liable  for  the  consequences, 
for  they  result  from  the  doing  of  their  business,  by  one  then  employed  by 
them.  The  cases  of  Drayton  ads.  Moore,  and  Parker  &  Go.  vs.  Gordon, 
(Dudley's  Rep.  268,)  and  of  O'Gonnell  vs.  Strong,  {lb.  265,)  are  full  to 
this  point.  In  ordinary  cases,  this  would  not  be  questioned.  But  it  is 
supposed  that  this  case  is  not  governed  by  the  ordinary  rules  applicable 
to  cases  of  liability,  arising  out  of  the  relation  of  master  and  servant.  I 
am  at  a  loss  to  conceive  any  just  reason  for  this  motion.  The  law,  it 
seems  to  me,  is  to  be  regarded  as  a  general  science,  applicable  to  every 
case  coming  within  the  letter  or  the  reason  of  the  rule.  Where  it  is 
within  neither,  it  becomes  an  exception  to  it.  It  is  only  necessary  to 
state  this  case,  to  see  that  it  is  within  both  the  letter  and  reason  of  the 
rule  ;  for  the  defendants  employ  the  plaintiff  to  act  under  the  command 
of  another  of  their  servants.  In  such  a  case,  the  servant  in  command,  is 
in  the  place  of  the  employers.  When  they  hire  another  to  engage  in  a 
service,  where  neither  his  own  care  nor  prudence  can  shield  him  from 
injury,  which  may  arise  from  the  act  of  another  of  tlieir  agents,  having 
the  control  of  him,  the  question  of  their  liability  depends  upon  the  care 
used  by  such  superior  agent.  The  ordinary  rule  in  cases  of  hiring  goods, 
is,  that  the  hirer  should  use  that  degree  of  care  which  a  prudent  man 
would  take  of  his  own  goods.  If  this  degree  of  care  is  shown,  then  the 
hirer  is  not  liable  for  any  injury  which  may  result  to  the  goods  hired. 
This  rule,  it  seems  to  me,  must,  necessarily,  be  that  which  applies  to  this 
case.  Is  more  favor  to  be  bestowed  on  a  man's  goods  than  on  his  person  ? 
It  would  be  strange  that  this  should  be  so.  It  may  be  tested,  however, 
by  inquiring  if  the  plaintiff,  instead  of  himself,  had  hired  his  negro  man 
to  the  defendants  as  second  fireman,  and  he  had  lost  his  leg  by  the  care- 


264  CHARLESTON,  FEBRUARY,  1841.      VOL.  I.  [*404 

lessuess  of  the  engineer,  would  not  the  defendants  have  been  liable  ?  It 
seems  to  nie  that  they  would,  or  one  section  of  the  law  of  bailments  weuld 
be  repealed  by  the  Court  of  Errors.  There  can  be  no  difference  in  the 
law,  as  applicable  to  the  white  man  or  the  slave,  in  a  contract  of  hiring. 
^  .„--,  Both  are  capable  of  self-preservation,  and  both  are  *capable  of 
-^  wrong  and  right  action  ;  and  in  the  capacity  of  firemen,  both  are 
under  the  orders  of  the  engineer,  and  must  look  to  him  for  safety. 

In  the  cases  o?  Drayton  ads.  Moore,  and  Parker  &  Go.  vs.  Gordon, 
(Dud.  Rep.  272,)  it  was  said,  "  when  a  master  employs  slaves  in  any 
public  employment  or  trust,  such  as  tradesmen,  ferrymen,  wagoners, 
patroons  of  boats,  or  masters  of  vessels  in  the  coasting  or  river  naviga- 
tion, he  undertakes,  not  only  for  their  skill,  and  faithfulness  to  all  who 
may  employ  them,  but  also,  for  their  genei'al  skill  and  faithfulness  to  the 
whole  community."  This  rule  stated  as  to  slaves,  applies  more  forcibly 
to  hired  servants,  and  my  brother  Johnson,  who  then  resisted  the  rule  as 
to  slaves,  admitted  it  in  its  fullest  extent  as  to  hired  servants.  Taking 
this  as  settled  law,  how  stood  the  plaintiff  in  his  contract  with  the  defend- 
ants in  relation  to  the  engineer  ?  Had  he  not  the  right,  according  to 
law,  to  regard  the  defendants  as  contracting  both  for  skilfulness  and 
faithfulness  ?  It  seems  to  me,  there  can  be  no  donbt  about  it.  Well, 
this  being  so,  if  the  engineer  was  negligent,  the  defendants'  undertaking 
for  his  faithfulness  was  broken,  and  they  are  most  clearly  liable. 

It  is,  however,  urged  (and  that  is,  as  I  understand,  the  ground  on 
which  'the  Court  of  Errors  decides  the  case)  that  this  case  is  one  of 
novel  impression,  and  not  to  be  decided  by  the  ordinary  rules  of  the  law 
of  bailment.  Conveyance  by  locomotives  on  railways  is  supposed  to  be 
more  analogous  to  shipping  than  any  thing  else  ;  and  hence,  unless  a 
sailor  could  recover  for  an  injury  arising  from  the  neglect  of  a  master,  it 
is  supposed  that  a  fireman  cannot,  for  an  injury  arising  from  the  neglect 
of  the  engineer.  Before  I  discuss  the  case  in  this  new  aspect,  I  deny 
that  any  mode  of  conveyance  on  land  is  to  be  put  on  a  footing  with  the 
navigation  of  tlie  ocean  in  ships.  That  is  governed  by  the  principles  of 
law  coeval  with  society,  and  in  n?any  respects  common  to  every  civilized 
natiftn  of  the  earth.  Conveyances  on  land  are  also  regulated  by  a  very 
ancient  and  well-settled  law  wholly  distinct  from  the  other.  It  will, 
however,  be  sufficient  to  show  by  one  plain  view,  that  the  law  applicable 
to  mariners  cannot  affect  this  case.  Unless  a  vessel  earns  freight,  the 
mariner  is  entitled  to  no  wages.  Suppose  a  locomotive  running  from 
Charleston  to  Aiken  should  burn  up  tlie  entire  train,  and  thus  earn  no 
*40f;l  ^'*^'Sl>t,  *would  not  all  the  hands  hired  by  the  defendants  to 
manage  her,  be  entitled  to  their  wages  ?  There  could  be  no  more 
doubt  that  lliey  wonld,  than  that  a  man  "hired  to  drive  my  wagon  to 
Charleston,  who,  by  some  unforeseen  accident  should  lose  his  load,  would 
still  be  entitled  to  his  wages.  This  shows  that  in  the  very  beginning 
there  is  such  a  diff»;rence  in  the  law  of  a  ship  and  that  of  a  locomotive, 
that  it  is  impossible  the  law  of  the  former  can  decide  the  right  of  a  ser- 
vant employed  in  the  latter,  to  recover  for  an  injury  arising  from  the 
neglect  of  the  engineer. 

iJut  if  it  were  otherwise,  and  this  case  depended  upon  maritime  law, 
Btill  I  am  inclined  to  think  the  plaintiff  ought  to  recover.  No  exactly 
analogous  case  can  be  found.     In  riiillips  on  Ins.  4G3,  Judge  Story  is 


*406]  MURRAY   VS.   RAILROAD   COMPANY.  265 

represented  as  sayinji;,  in  the  case  of  the  Saratoga,  "It  appears  to  me, 
tliat  upon  the  established  doctrine  of  our  law,  where  the  freight  is  lost  by 
inevitable  accident,  the  seamen  cannot  recover  wages,  as  such,  from  the 
shi])  owner."  I  concede  that  this  dictum  is  the  true  law  regulating  a 
mariner's  right  to  wages.  If  the  freight  was  lost  by  the  master's  neglect, 
it  could  not  then  be  ascribed  to  inevitable  accident;  and  then,  I  think, 
the  seaman  would  be  entitled  to  recover  If  this  is  true  in  relation  to 
wages,  the  same  rule  must  hold  as  to  the  mariner's  right  to  recover  for 
any  injury  arising  from  the  negligence  of  the  master. 

But,  it  is  said,  it  would  be  impolitic  to  make  the  defendants  liable  for 
any  injury  accruing  to  a  fireman,  from  the  neglect  of  the  engineer.  This 
would  be  worth  inquiring  into  with  great  care  in  the  Legislature  ;  but, 
in  a  Court,  I  think  we  have  nothing  to  do  with  the  policy  of  a  case;  the 
law  of  it  is  our  guide.  But  if  we  are  to  look  to  the  policy,  then  I  should 
a''gue  that  the  more  liability  imposed  on  the  railroad  company,  the  more 
care  and  prudence  would  be  thereby  elicited.  This  result  is  what  the 
community  desires.  For  it  secures  life  and  property,  committed  to  their 
care. 

I  think  the  motion  ought  to  be  dismissed. 

Gantt,  J.,  concurred. 

J.  Johnston,  Ch.,  also  dissenting.  It  may  not  diminish  the  force  of 
the  observations  made  by  Mr.  Justice  O'Neall,  if  I  *state  very  ^^^/^.. 
briefly  the  reasons  which  induce  me  to  concur  in  his  dissent.  L 

It  is  admitted  that  the  duties  and  liabilities  between  masters  and  hired 
servants,  result  only  from  the  nature  and  terms  of  the  contract  which 
forms  the  relation ;  and  that  neither  party  is  allowed  to  extend  or  abridge 
the  contract.  That  the  master  cannot  exact  other  services  than  those 
stipulated  for;  nor,  by  any  indirection,  subject  the  servant  to  any  other 
than  the  ordinary  perils  incident  to  the  employment ;  and  that  if  he  does, 
by  any  agency  whatever,  or  by  any  means,  whether  of  design  or  negli- 
gence, accumulate  upon  the  servant,  while  in  the  performance  of  his 
duty,  any  dangers  beyond  these  inherent  in  the  service  itself,  they  fall 
upon  the  latter,  not  as  a  servant,  (for  his  contract  does  not  bind  him  to 
endure  them,)  but  as  a  man,  and  the  law  entitles  him  to  redress. 

It  is  also  admitted  that  these  principles  are  not  confined  to  cases  where 
one  servant  only  is  employed,  but  prevail  when  a  plurality  are  at  the 
same  time  engaged  by  the  same  master.  Their  application,  however,  in 
cases  of  the  latter  description,  depends  upon  the  terms  of  the  contract. 
If  several  jointly  contract  to  perform  a  specified  duty,  the  master  is  not 
liable  to  either  of  them  for  injuries  resulting  from  the  faithlessness  or  negli- 
gence of  his  coadjutor ;  all  of  them  being,  substantially,  agents  for  each 
other,  to  perform  their  joint  undertaking.  But  when  their  engagements 
are  several,  each  undertaking  for  himself,  to  perform  distinct  offices,  in 
a  matter  susceptible  of  a  division  of  labor,  each  stands  to  the  master 
in  the  same  relation,  and  is  entitled  to  the  same  rights,  as  if  he  was  the 
only  servant  employed.  The  master  is  responsible  to  him,  as  he  would 
be  to  a  stranger,  for  the  misconduct  of  the  others,  who  are  exclusively 
his,  the  master's,  agents. 

Now,  this  is  admitted  to  be  the  general  law  upon  the  subject ;  and  it 
is  applicable  to  the  servants  of  a  railroad  company,  as  well  as  to  those 


266  CHARLESTON,  FEBRUARY,  1841.      YOL.  I.  [*40T 

of  anv  other  employer,  unless  there  be  something  to  take  thera  out  of 
its  operation. 

Xo  instance  of  master  and  servant  has  been  pointed  out  where  these 
principles  do  not  obtain,  except  the  case  of  a  ship's  crew ;  but  that  stands 
clearly  upon  special  grounds  of  usage. 

If  the  servants  employed  about  a  railroad,  are  excepted  out  of  the 
♦  1081  general  rules  relating  to  ageucy,the  exception,  with  the  ^grounds 
J  and  reasons  of  it,  must  be  shown,  otherwise  the  employers  will  be 
as  liable  to  any  one  engaged  in  their  service,  for  injuries  inflicted  on  him 
by  other  agents,  in  the  course  of  their  employment,  as  a  planter  would  be 
to  a  hired  hand  for  maltreatment  by  his  overseer. 

I  presume  no  one  will  contend  that  the  rule  applicable  to  service  in 
a  railroad  company,  is,  that  the  company  is  not  liable  to  any  agent,  for 
ami  injury,  provided  the  company  can  only  show  that  another  of  its 
agents  has  inflicted  it.  Would  it  do  to  say,  for  example — and  upon  what 
principle  could  it  be  said — that  a  superintendent  of  the  hands  engaged 
in  repairing  the  road,  may,  with  impunity  to  the  company,  abuse  his 
authority,  to  the  injury  of  their  health  ?  Or,  if  the  cars  were  to  be  run 
at  night,  and,  through  the  neglect  of  hands  set  apart  to  watch  the  road, 
and  remove  obstructions,  the  whole  train  were  lost,  and  any  officer  or 
hand  on  board  were  crippled,  certainly  no  one  means  to  assert  that  none 
of  these  could  claim  compensation  from  the  company,  but  must  look 
exclusively  to  the  irresponsible  agents  (perhaps  slaves,)  hired  by  the 
company,  through  whom  the  injury  accrued  ?  And  yet,  how  is  the  rule 
to  be  laid  down — I  wish  to  hear  the  rule  stated — which  would  include 
that  case  and  exclude  this.  The  fidelity  of  the  hands  detailed  to  super- 
intend the  road,  in  the  case  I  have  supposed,  would  be  as  essential  to  the 
coramfin  enterprise  of  running  the  cars,  as  the  fidelity  of  the  hands  on 
board  to  their  respective  duties.  If  the  idea  is  indulged,  that  there  is, 
in  any  Ijranch  of  this  enterprise,  an  implied  undertaking  among  the  ser- 
vants to  do  the  work  jointly,  and  to  waive  the  neglect  of  each  other, 
what  will  constitute  such  an  understanding  ?  Where  are  its  limits  ?  Does 
it  arise  from  the  intimate  connection  of  the  hands  ?  Then,  I  wish  to  be 
informed  what  degree  of  intimacy,  what  strength  of  association,  is 
demanded,  to  raise  the  implication  ?     Where  is  the  line  ? 

I  give  no  oj)inion  upon  the  evidence.  I  take  the  verdict  for  the  facts  ; 
and,  according  to  the  finding  of  the  jury,  the  plaintiff  faithfully  per- 
formed his  ])articular  duty,  and,  while  performing  it,  was  injured  by  the 
faithlessness  or  negligence  with  which  the  company,  acting  in  the  person 
of  unotlior  agent,  executed  a  duty  incumbent  upon  them.  Ought  the 
plaiutiff's  remedy  tn  be  doubtful  ? 

*409l  ^'^^^^  elements  of  the  contract  between  him  and  the  defendants, 
arc  these  :  on  their  part,  so  far  as  they  were  to  contribute  to  the 
propelling  of  the  cars,  that 'they  would  carry  him  safely  ;  and,  on  his  part, 
that  on  the  trip  he  would  perform  certain  offices.  With  respect  to  the 
last,  he  was  their  servant ;  with  regard  to  the  first,  he  was  their  passen- 
ger; and  as  their  passenger,  they  have  crippled  him.  The  distinction  is 
plain,  and  the  propriety  of  applying  it  would  be  as  plain,  if  instead  of 
being  stationed  where  he  was,  he  had  only  been  a  clerk,  hired  by  the 
comjiuny  to  travel  up  and  down  in  the  cars,  and  take  a  minute  of  their 
operations.     Yet,  on  princii)le,  no  discrimination  can  be  drawn  against 


*-J:09]  BURGER,   TAX   COLLECTOR,   acls.   CARTER.  267 

him  on  account  of  his  being  a  fireman,  and  not  travelling  clerk;  because 
ho  had  as  little  connection  with,  or  control  over,  the  department  from 
which  his  injury  sprang,  or  the  agent  to  whom  it  was  exclusively  com- 
mitted by  the  defendants,  as  if  he  had  been  assigned  any  imaginable  duty 
ill  the  remotest  part  of  the  train. 

Note. — Tliis  case  was  argued  before  the  present  incumbent  was  elected  to  the 
office  of  State  Reporter,  which  will  account  for  the  want  of  the  iisual  notes  of  the 
argument  of  counsel.  He  has  been  furnished  by  his  Honor,  Judge  Richardson, 
with  the  argument  of  Col.  Blanding,  submitted  by  him,  in  his  life  time,  to  the 
Ajjpeal  Court,  which  he  has  published  with  the  case.  The  Reporter  regrets, 
exceedingly,  that  he  has  not  been  furnished  with  the  eloquent  arguments  (as 
he  has  been  informed  they  were, )  of  the  different  counsel  who  were  engaged  in 
this  case. 

See  9  Rich.,  93,  4G8 ;  4  Rich.,  426;  5  Rich.,  15;  1  Strob.,  525,  and  other  cases 
concerning  passenger  carriers.     An. 


*Samuel   Burger,   Tax   Collector,   ads.  The  State,   ex  Re-  r^tici 
LATioNE  William  Carter.  '- 

The  first  clause  of  the  Act  to  raise  supplies  for  the  year  1839,  which  directs  "that 
a  tax  shall  be  raised  and  paid  into  the  Treasury  of  this  State,  of  one-eighth  of 
one  per  cent,  upon  all  purchases  and  sales  of  bullion,  specie,  bank-notes,  bills 
of  exchange,  and  stocks,  which  may  be  made  by  any  brokers  or  agents  in  this 
State,  for  or  on  account  of  any  bank,  company  or  individvial  without  the  State ; 
and  also,  upon  all  such  purchases  and  sales  as  may  be  made  by  any  such  broker 
or  agent  upon  his  own  account,  or  for  account  of  others  engaged  in  the  same 
pursuits,"  held  to  be  constitutional,  but  prospective  in  its  words. 

By  the  tax  Act  of  17S8,  the  fiscal  year  is  considered  as  beginning  on  the  first  day 
of  October,  preceding  the  enactment  of  the  tax  Act. 

A  writ  of  prohibition  will  lie,  to  restrain  the  enforcement  of  a  tax  execution. 

Before  O'Xeall,  J.,  at  Chambers,  Charleston,  February,  1840. 

This  was  an  application  for  a  writ  of  prohibition,  to  restrain  the 
defendant,  the  tax  collector  of  Saint  Philip's  and  Saint  Michael's  from 
collecting  a  tax  imposed  upon  the  relator,  under  the  provision  of  the 
first  clause  of  the  Act  to  raise  supplies  for  the  year  1839,(a)  which  directs 
"  that  a  tax  shall  be  raised  and  paid  into  the  Treasury  of  this  State,  of 
one-eighth  of  one  per  cent,  upon  all  })urchases  and  sales  of  bullion, 
specie,  bank-notes,  bills  of  exchange,  and  stocks,  which  may  be  made  by 
any  brokers  or  agents,  in  this  State,  for  or  on  account  of  any  bank,  com- 
pany or  individual  without  the  State  ;  and  also,  upon  all  such  purchases 
and  sales  as  may  be  made  by  any  such  broker  or  agent,  upon  his  own 
account,  or  for  account  of  others  engaged  in  the  same  pursuits." 

The  same  clause,  in  a  previous  part,  imposes  a  tax  of  "  sixty  cents  per 
hundred  dollars,  on  factorage  employments,  faculties  and  professions." 

The  relator  alleges,  that  he  is  not  a  broker  or  agent  within  the  meaning 
of  the  law  ;  but  in  making  the  purchases  contemplated  in  it,  he  acts  as  a 
principal,  and  on  his  own  account. 

It  might  be  enough  to  disi)0se  of  the  case,  on  this  allegation  in  part, 

(a)  11  Stat.,  1. 


268  CHARLESTON,  FEBRUARY,  1841.      VOL.  I.  [*410 

and  direct  the  plaintiff  to  declare  in  prohibition,  so  that  the  truth  of  it 
luiirht  be  ascertaind  by  jury.  The  definition  of  the  word  Brokers,  given 
in  the  Commercial  Dictionary,  is  "persons  appointed  to  transact  business 
between  *merchant  and  merchant,  or  merchant  and  tradesmen,  in 
*'*^^  matters  of  money  or  merchandise,  for  which  they  received  a  stipu- 
lated commission,"  it  may  be  that  this  definition  would  not  embrace  the 
relator.  Still  I  have  no  doubt  in  construing  the  statute,  that  we  may 
look  to  a  popular  meaning  of  a  word  not  embraced  in  any  strict  definition. 
If  the  relator  is  a  broker  or  agent,  acting  for  a  bank,  company,  or  indi- 
vidual without  the  States,  in  making  such  purchases,  although  he  may 
use  his  own  funds,  and  although  he  might  consider  them  on  his  own 
account,  still,  he  may  be  within  the  sense  and  meaning  in  which  the 
legislature  used  the  words.  I  will  not,  however,  pursue  this  matter,  for  I 
shall  not  avoid  giving  my  judgment  on  the  graver  questions  made. 

I  have  no  doubt,  the  tax  was  intended  to  be  imposed  on  such  brokers 
or  agents  as  usually  make  purchases  of  bullion,  specie,  bank  notes,  bills 
of  exch'uige,  and  stocks,  for  any  bank,  company,  or  individual  without 
the  State,  whether  the  purchases  were  made  for  or  on  account  of  the  bank 
company  or  individual  without  the  State,  or  for  or  on  account  of  such 
brokers  or  agents  themselves.  Unquestionably,  the  object  of  it  was,  to 
subject  to  tax  transactions  of  this  kind,  which  could  not  be  embraced  in 
the  tax  ou  factorage  employments,  faculties  and  professions-;  and  so  far, 
if  the  law  could  be  enforced  against  them  alone,  I  should  think  the  tax 
legitimate  and  proper.  For  it  is  not  to  be  allowed  to  corporations  or 
individuals  of  other  States,  to  have,  free  from  taxation,  all  tlie  benefits  of 
a  business,  in  which,  if  our  own  citizens  engage,  they  pay  a  tax  on  their 
income.  But,  so  far  as  it  would  operate  on  the  income  of  the  brokers, 
derived  from  this  business,  then  the  effect  of  the  Act  would  be,  to  subject 
it  to  two  taxes  at  the  same  time,  the  tax  of  sixty  cents  ou  factorages,  &c., 
and  the  tax  of  one-eighth  of  one  per  cent,  on  all  purchases  and  sales  of  bul- 
lion, (fcc.  This  could  not  have  been  intended  ;  for  the  Legislature  of  South 
Carolina  never  have  done,  and  never  will  do  an  act  of  wilful  injustice.  If 
this,  however,  is  the  clear  effect  of  the  law,  it  might  constitute  a  reason 
for  holding  it  to  be  unconstitutional,  on  the  ground,  that  the  same  thing 
cannot  be  twice  taxed,  without  violating  the  guaranty  of  property,  which 
our  constitution  secures  to  each  and  every  one. 

This  position  is,  however,  not  necessary  to  be  assumed  as  *a 


* 


4121 

■^  distinct  ground  of  decision  ;  it  may  be  resorted  to  in  aid  of  the 

conclusion  t<t  wjiich  I  shall  come  in  another  part  of  this  case. 

The  first  iiKpiiry  is,  can  the  defendant  be  subjected  to  an  assessment  of 

one-eighth  of  one  per  cent,  on  all  purchases  and  sales  of  bullion,  <fcc., 

made  before  the' 1st  of  last  October  ?    According  to  the  tax  Act  of  1788, 

the  fiscal  year  is  considered  as  beginning  on  the  1st  day  of  October  of  the 

year  preceding  tlic  enactment  of  the  tax  Act.     Income  and   propert}', 

(with  the  e.\ce|ttion  of  stock  in  trade,)  are  returned  as  of  that  time  ;  and 

llic  usual  taxation  of  the  State  is  raised  and  paid  accordingly.     If,  how- 

ever,  the  Legislature  choose  to  raise  a  new  tax,  and  use  words  which 

fihow  (hey  could  not  have  intended  it  to  be  raised  as  of  a  past  time,  then 

it  would   l)e  violating  every  rule  of  construction  to  give  it  that  effect. 

The  words  here  used,  plainly  point  to  a  future  act  to  be  done,  on  which 

the  tax,  (as  the  Legislature  call  it,)  is  to  arise. — "  One-eighth  of  one  per 


*412]     BURGER,  TAX  COLLECTOR,  a(h.    CARTER.       2G9 

cent,  on  all  purchases  anrl  sales  of  bullion,  specie,  bank  notes,  bills  of 
exchange,  and  stocks,  which  may  be  made  by  any  brokers  or  agents," 
&c.  If  the  relator  had,  on  the  passage  of  the  Act,  closed  his  office,  and 
ceased  to  do  business,  it  is  clear  that  he  would  not  be  liable  to  tlie 
payment  of  any  thing  under  this  provision.  That  being  the  case,  his 
suljscipient  pursuit  of  the  same  business  cannot  make  him  liable  on  his 
past  transactions.  Then,  it  is  only  necessary  to  refer  to  the  case  of  the 
titate  vs.  Allen,  (2  McC,  55,)  as  a  conclusive  authority  on  this  point. 
The  Act  of  1820  imposes  a  tax  of  $10,000  upon  any  person  "  who  shall, 
after  the  passing  of  tiiis  Act,  open  or  keep  open,  any  office  for  the  sale  of 
any  lottery  tickets,"  itc.  It  was  held  by  the  whole  court,  that  the  lan- 
guage of  the  Act  being  prospective,  the  tax,  as  it  was  called,  could  not 
be  referred  to  the  commencement  of  the  fiscal  year.  The  words  in  the 
Act  of  1839  are  as  plaiidy  prospective  as  those  used  in  the  Act  of  1820, 
and  no  room  is  left  for  a  distinction  ;  and  hence,  both  from  their  own 
legitimate  construction,  and  from  the  authority  of  the  State  vs.  Allen,  I 
conclude  that  the  assessment  on  the  relator,  as  of  the  1st  of  last  October, 
is  not  authorized  by  the  Act. 

The  next,  and  most  serious  inquiry,  is.  Is  the  provision  which  we  are 
considering,  a  tax  or  a  penalty  ?  If  it  is  the  latter,  then  *it  is  r^^io 
unconstitutional,  and  cannot  be  enforced.  I  have  endeavored,  in  L 
cvery  way  which  I  could,  to  avoid  the  conclusion  to  which  I  have  come. 
The  duty  of  passing  between  the  Legislature  and  the  people,  is  not  to  be 
courted  by  even  a  full  bench  of  Judges,  much  less  should  it  be  willingly 
assumed  by  a  single  Judge.  But  there  is  nothing  more  sacredly  due  to 
the  people,  by  a  Judge,  than  the  duly  of  protecting  each  and  every  one 
of  them,  against  plainly  unconstitutional  enactments. 

Generally,  I  would  say,  that  taxation  is  of  three  kinds — property,  in- 
come, and  capitation.  A  liability  to  pay  into  the  treasury  a  sum  of 
money,  which  is  to  arise  on  an  act  to  be  done,  is  hardly  to  be  considered, 
in  any  point  of  view,  a  tax.  It  is,  then,  in  restraint  of  action,  and  is  a 
penalty.  The  only  apparent  exception  which  strikes  my  mind,  is  that  of 
duties  and  imposts.  They  are,  however,  levied  on  the  proi)erty;  and 
although  the  liability  to  pay  them  arises  from  an  act  done  in  bringing  the 
goods  into  a  port  of  the  United  States,  still  they  are  essentially  a  tax  on 
property.  This,  if  it  could  be  considered  as  in  reality  a  tax  on  income, 
although  it  might  arise  from  an  act  to  be  done,  I  should  be  disposed  to 
hold,  tliat  it  was  a  rightful  exercise  of  the  taxing  power.  But  it  is  plain 
that  it  is  not  a  tax  on  income,  for  the  income  of  the  relator  had  already 
been  taxed.  It  is,  then,  in  restraint  of  his  action  in  purchasing  or  selling 
bullion,  specie,  bank  notes,  bills  of  exchange,  and  stocks,  both  for  any 
bank,  comjjany,  or  individual  out  of  the  State,  or  on  his  own  account. 
This  makes  it  a  ])lain  case  of  penalty.  It  is  saying,  if  you  do  such  an 
act,  you  must  pay  to  the  public  such  a  sum  of  money.  Here  the  consti- 
tution guarantees  a  trial,  both  by  the  defendant's  peers,  and  also  accord- 
ing to  the  course  of  the  common  law,  which  I  understand  to  be  the 
meaning  of  "  the  law  of  the  land."  For,  before  the  defendant  is  liable  to 
pay  it,  an  act  done  must  be  ascertained.  He  cannot  be  made  to  accuse 
himself,  or  forced  to  testify  against  himself,  according  to  the  course  of  the 
common  law  ;  and  yet,  according  to  the  tax  Act,  he  must  make  his 
return,  on  oath.     This  would  be  in  violation  of  his  right  of  trial  as  a 


270  CHARLESTON,  FEBRUARY,  1841.      VOL.  T.  [*413 

freeman,  and  cannot,  therefore,  be  enforced.  The  ascertainment  of  the 
fact  on  'which  his  liability  to  pay,  arises,  can  only  be  per  testes  on  a  trial 
by  a  jury.  The  power  of  the  tax  collector  to  assess  a  tax  on  an  act  to  be 
done,  and  issue  his  execution,  is  in  violation  of  the  protection  g-naranteed 
jj,  '-,  by  the  constitution.*  It  cannot  derive  any  support  from  the  sum 
^  -I  required  to  be  paid  for  a  license  to  keep  a  tavern,  or  retail.  The 
party  there  pays,  voluntarily,  a  sum  of  money,  to  do  an  act  which  would 
otherwise  be  unlawful.  That  is  consentive,  and  not  compulsory,  and 
cannot  be,  therefore,  objected  to.  If  the  Legislature  had  thought  proper 
to  require  that  brokers  should,  before  engaging  in  the  business  described 
by  this  Act,  take  out  a  license,  and  for  it  should  pay  a  sum  of  money, 
they  might  have  done  so.  That  this  provision  is  a  penalty,  is,  I  think, 
fullv  ma'de  out  by  the  reasoning  which  I  have  very  imperfectly  sketched. 
The  case  of  the  State  vs.  Allen,  (2  McC.  55,)  is  an  analogous  case, 
and  its  authority  makes  it  imperative  on  me  to  declare  this  provision  of 
the  Act  of '39,  unconstitutional,  as  the  Court  then  did  that  of  1820. 
It  is  ordered  that  the  writ  of  prohibition  prayed  for  be  granted. 

From  this  order  the  responrlent  appeals,  and  moves  that  the  same  may  be 
reversed,  or  rescinded,  for  the  following  reasons  : 

1.  'I'hat  the  Act  of  1839  must  be  construed  in  connection  with  the  Acts 
rcg-ulating  the  fiscal  year  ;  and  that  by  the  proper  construction  of  the  Act  of 
1839,  the'tax  on  brokers  is  not  prospective,  but  applies  to  the  relator,  and 
renders  him  Uable  to  the  payment  of  the  sum  assessed  against  him  by  the 
respondent. 

2.  That  the  subjects  of  taxation  by  the  Legislature,  are  not  limited  by  the 
constitution  ;  and  that  a  pecuniary  imposition  is  a  tax,  or  a  penalty,  as  the 
Legislature  may  make  or  declare  it  to  be  the  one  or  the  other,  by  legislation. 

3.  That  there  is  uo  ground  for  a  discrimination  between  a  tax  and  a  penalty, 
with  reference  to  the  subject  matter  of  the  imposition  ;  and  there  is,  therefore, 
no  ground  to  declare  the  tax  on  brokers  a  penalty,  which  will  not  apply  equally 
to  every  tax  which  has  been,  or  can  be,  imposed  by  the  Legislature. 

4.  That  to  declare  a  tax  unconstitutional,  on  the  ground  that  it  is  a  penalty, 
is  an  invasion  of  the  powers  exclusively  vested  in  the  Legislature,  by  the 
constittition  ;  and  involves  a  principle  which  concentrates  in  the  Judiciary  all 
*A■lr^   the  powers  *of  government,  which  it  was  the  object  of  the  constitution 

-I   to  lodge  in  separate  departments. 

5.  That  the  order  directing  the  writ  of  prohibition  to  issue  in  this  case,  is,  in 
other  respects,  illegal,  and  an  infringement  of  the  provisions  of  the  cou- 
Btitutiou. 

Jiailei/,  Attorney  General,  for  the  motion,  contended,  first,  that  the  Act  was  not 
proMpectivc.  That  there  was  nothhig  to  distinguish  this  Act  from  any  other  Act 
priiiHefl  in  18'.V.).  Tlic  various  Tdx  Acts  have  no  specific  time  when  the  retuVns  or 
a.s.seHsiiicnt.><  shall  bo  made.     Act  17S8,  (Public  Laws,  439.) 

'M.  Tliat  it  is  not  unconstitutional,  because  there  is  no  restraint  upon  the  taxing 
]»ow<'r.  He  cited  Jac.  L.  D.,  as  to  the  definition  of  taxes.  Berneii  vs.  Tax 
Collrrtor,  2  Hail.,  ^4;  4  McC,  2(i(j;  Com.  Dig.,  letter  A.,  Tit.  Prohib.  Prohibition 
will  not  lie  aguiust  a  niiuisterial  ollicer.    Eac.  Abr.  Tit.  Pro.,  letter  J. ;  1  Cranch,  137. 

I/init,  contra.  I  contend  that  the  general  power  wliich  it  is  admitted  the 
Legi.slaliire  jmwhohh,  in  si^liM-ting  the  subjects  of  taxation,  must  be  controlled  by  the 
great  fuiidaniental  principles  upon  which  free  government  is  based. 

Taxation  indud.s  the  power  to  collect,  in  a  summary  mode,  the  amount  levied, 
from  flic  iicc'ssity  of  tlie  case.  This  arbitrary,  but  indispensable  power,  mu.st  be 
used  only  to  the  extent  indispensalile  for  the  public  weal;  not  al)used,  by  applying 
it  to  the  purposes  of  jwnal  enactments,  and  under  the  guise  of  taxation,  to  impose 
penalties  wliich  aro  to  be  collected  by  an  iiuiuisition  and  execution  by  a  collector, 


^415] 


BURGER,    TAX    COLLECTOR,    Cicls.   CARTER.  271 


without  recourse  to  the  ordinary  tribunals  of  the  country.  The  constitution 
protects  the  citizen  from  all  judgments  against  his  person  or  property,  otherwise 
than  by  a  judicial  trial  by  jury,  as  heretofore  used.  Now,  the  true  ditficulty  is  to 
ascertain  whether,  in  truth,  the  imposition  is  a  tax  or  not.  But  the  nature  of 
taxation  must  be  ascertained  by  the  general  understanding  of  free  government, 
and  especially  that  from  which  we  derive  most  of  our  principles  of  jurisprudence, 
modified  by  our  free  institutions. 

A  tax,  as  generally  understood,  is  a  contribution  by  the  people,  in  proportion  to 
their  estates,  for  the  public  expense.  And  as  in  this  State  taxation  and  represen- 
tation should  concur,  all  who  vote,  should,  as  near  as  may  be,  pay  equally ;  and 
certainly  it  is  unprincipled  to  tax  what  a  man  does,  and  not  his  property.  Even 
a  tax  on  the  income  of  a  peculiar  profession,  has  at  least  this  palliation,  that  it  is 
proportioned  to  the  property  acquired  by  that  calling.  But  a  tax,  as  in  this  case, 
iipoji  the  operation  itself,  without  regard  to  the  fact,  whether  much  or  little  or 
nothing  is  acquired  by  it,  is  a  tax  upon  what  a  man  does,  and  not  upon  his 
property.  Neither  is  it  like  a  capitation  tax,  where  every  individual  pays  an  equal 
amount.  ^Neither  is  it  like  a  stamp  act.  The  law  denies  its  aid  to  recover  r*^-!,- 
on  contracts  not  engrossed  on  stamped  paper,  leaving  it  to  the  option  of  the  "- 
party  to  buy  this  privilege. 

Nor  is  it  a  license,  which  is  voluntarily  sought  for ;  and  the  tax  collector  cannot 
collect  a  penalty  for  retailing  without  a  license.  It  is  a  case  for  the  Courts.  Any 
attempt  to  impose  is  illegal,  and  the  very  amount  of  the  alleged  tax  is  one  means 
of  ascertaining  the  nature  of  the  imposition. 

Taxes,  to  be  legitimate,  must  be  moderate;  and  excessive  imposts,  with  a  view 
to  protection  of  one  class,  by  exactions  from  others,  are  contrary  to  couunon  right. 
The  Legislature  may  prohil)it,  and  impose  penalties  for  the  purposes  of  general 
morality ;  but  taxation  is  not  the  mode  of  enacting  or  enforcing  penal  laws. 

Now,  the  law  in  question  lays  a  tax  "uj^on  all  purchases  and  sales  of  bullion, 
&c.,"  without  regai'd  to  the  income  or  profit  arising  from  the  purchase  or  sales. 
It  is  a  penalty  on  such  transactions,  under  the  guise  of  a  tax — it  is  an  imposition 
upon  a  particular  class  of  industrious  dealers,  not  for  revenue  merely,  but  the 
amount  is  so  enormous  that  it  is  calculated  not  to  raise  money,  but  to  break  up 
the  business.  The  usual  profits  upon  stock  transactions  and  money  transfers,  is 
little,  if  anything,  more  than  this  tax.  Fifty  or  eighty  per  cent,  on  the  profits  of 
a  transaction  is  too  clearly  a  penalty,  or  at  least  a  tax,  calculated  and  intended  to 
he  prohibitory.     Is  prohibitory  taxation  constitutional  ? 

Equality  of  rights  lays  at  the  foundation  of  our  institutions,  and  the  perversion  of 
the  taxing  power,  to  foster  or  prohibit  any  honest  labor,  is  against  common  right, 
and  unconstltutiiuial. 

Although  no  limitation  is  fixed  expressly,  yet  the  Article  1,  section  15,  Consti- 
tution of  South  Carolina,  speaks  of  "Bills  for  raising  Revenue,"  as  tax  bills. 
But  it  is  said,  the  amount  is  not  fixed;  but  sec.  4,  art.  9,  states,  that  "excessive 
fines  shall  not  be  imposed."  This  clearly  shows  that  the  people  shall  not  be 
interfered  with  by  excessive  fines ;  and  a  fortiori,  taxes  which  are  excessive  are 
against  the  nature  of  our  institutions. 

The  case  of  Burnie  vs.  Tux  Collector,  shows,  that  under  the  pretence  of 
taxation,  you  cannot  enact  penal  laws.  This  Act  is,  therefore,  unconstitutional. 
The  proceedings  of  the  tax  collector  are  also  illegal.  The  tax,  like  all  others, 
relates  to  the  1st  day  of  October.  And  as  the  transactions  of  the  previous  year 
were  legal,  and  without  any  imposition  at  the  time  they  transpired,  to  collect  so 
large  a  sum  as  one-eighth  of  one  per  cent.,  when  one-fourth  is  the  highest  amount 
of  commissions,  equal  therefore  to  fifty  per  cent.,  is  equally  unjust  and  illegal. 
It  is  a  penalty  imposed  after  the  act  done.  Calling  it  a  tax  does  not  alter  its 
nature.  If,  on  the  contrary,  the  tax  is  prospective,  then  it  is  not  due  until  the 
year  expires,  and  the  attempt  to  collect  it,  at  the  time  the  collector  made  it,  was  pre- 
mature, and  the  prohibition  *must  go.  The  very  fact  that  it  is  a  tax  on  actions  r*!!  " 
and  not  on  property,  renders  it  difficult  to  say  when  and  during  what  periods  ^ 
these  actions  are  to  transpire.  Taxes  are  annual — that  is,  property  is  taxed  once 
a  year.  But  this  Act  does  not  limit  the  time  to  the  past  year  or  the  present,  and 
there  is  no  time  within  which  the  return  must  be  made  ;  and  the  tax  collector 
might,  every  day,  issue  his  execution  as  a  sale  was  made.     Is  not  this  evidence 


272  CHARLESTON,  FEBRUARY,  1841.      YOL.  I.  [*417 

that  it  is  a  penalty  ?  The  power  of  tliis  court  to  interpose,  results  from  the  fact, 
that  there  are  two  kinds  of  law  which  this  court  is  called  on  to  administer— the 
Constitution,  and  the  Acts  of  the  Legislature.  An  Act  of  the  Legislature  contrary 
to  the  Constitution  is  not  obligatory  ;  and,  therefore,  whoever  attempts  to  enforce 
it  against  the  citizen,  impairs  his  rights,  and  the  court  must  protect  him.  The 
Legislature  having  passed  a  law  is  functus  officio.  They  cannot,  after  adjourn- 
ment, stay  the  execution  of  a  law.  It  is  only  the  judiciary  who  can  act — without 
it,  an  iinconstitutional  law  may  he  enforced.  All  tribunals  must  be  subordinate 
to  the  hiirhest.  The  tax  collector  acts  judicially  when  he  fixes  the  amount; 
assesses,  that  is,  adjudges,  that  the  citizen  is  bound  to  pay  the  State  a  sum  of 
monev.  If  his  judgment  is  wrong,  the  citizen  has  the  right  to  the  interference  of 
this  court.  Whether  prohibition  be  the  mode,  is  immaterial ;  and  in  this  State, 
the  strict  meaning  of  that  writ  in  England,  has  been  enlarged  for  the  beneficial 
purposes  of  protecting  the  constitutional  rights  of  the  people.  Thus,  the  Com- 
missioners of  the  Tobacco  Inspection,  the  Court  of  Wardens,  and  several  other 
tribunals  or  boards,  have  been  treated  as  courts,  and  prohibitions  issued  when 
they  denied  justice  or  exacted  what  was  unlawful.  Every  board  or  commissioner 
exercising  any  jurisdiction  over  the  persons  or  property  of  the  citizen,  is  a  judi- 
cial tribunal ;  and  the  writ  of  prohibition  is  the  proper  writ  to  restrain  their  pro- 
ceeding. 

This  Act  is  absurd,  as  it  speaks  of  a  broker  or  agent  selling  on  his  own  account, 
when  his  being  an  agent  implies  that  he  acts  for  another.  But  it  is  clear,  that 
the  object  of  the  Act  was,  to  jirevent  competition  between  brokers  and  the  banks, 
who  have  abandoned  their  legitimate  office  of  discounting  paper  coming  to  maturity 
where  their  capitals  were  located,  and  thus  enable  the  banks  to  manage  ex- 
changes so  as  to  suit  their  own  purposes.  It  is  a  perversion  of  taxation  to  create 
monopolies  and  interfere  with  the  common  rights  of  the  whole  community,  to 
pursue  their  avocations  under  the  protection  of  equal  laws 

Bailey,  in  reply.  All  Acts  from  1790,  down  to  the  passage  of  this  Act,  are  re- 
trospective, if  this  Act  of  1839  is  decided  to  be  so.  A  tax  is  in  the  nature  of  a 
contribution.     A  tax  collector  is  not  a  judicial,  but  a  ministerial,  officer. 

*41S1  *  Curia,  per  O'Xeall,  J.  In  this  case,  I  have  been  unable  to 
-'  discover  any  error  in  the  opinion  and  judgment  below.  But  a 
majority  of  the  Court  of  Errors  are  not  prepared  to  go  as  far  as  I  did, 
and  rule  the  clause  of  the  Act  of  '39,  under  consideration,  to  be  uncon- 
stitutional. They,  however,  agree  with  me,  that  it  is,  in  its  words, 
l)n)speclive,  and  did  not  justify  the  imposition  of  the  tax  assessed  by  the 
ta.x  cijllector.  The  reasons  assigned,  in  my  opinion  below,  for  this  con- 
clusion, are  satisfactory  to  them,  and  need  not  be  re-stated. 

It  has,  however,  l)cen  objected  by  the  Attorney-General,  in  his  argu- 
ment here,  that  the  writ  of  prohibition  did  not  lie  to  prohibit  the 
enforcement  of  a  ta.x  execution.  I  concede  that  if  we  were  obliged  to 
resort  fur  authority,  in  this  respect,  to  English  precedents,  we  could  not 
sustain  this  i)rocceding.  For,  according  to  them,  the  writ  of  prohibition 
only  lies  lo  prohibit  the  enforcement  of  the  judgment  of  an  inferior  juris- 
diciion,  where  it  lias  i)roceeded  without  jurisdiction,  or  where,  having 
jurisdiction,  it  has  exceeded  it. 

15ut  in  this  Slate  it  has  had  a  wider  operation.  For  the  want  of  a 
Ijclter  remedy,  it  has  been  allowed  to  restrain  llie  enforcement  of  tax 
oxeculions,  JIow  this  i)ractice  began,  it  is  difficult,  as  well  as  unim- 
]»ortunt,  to  ascertain.  It  may  be  that  it  was  allowed  on  the  notion  that 
a  tax  collector,  allhongh  a  ministerial  officer,  exercised  a  sort  of  judicial 
jiower,  in  deciding  that  a  person  who  denied  his  liability  to  pay  a  tax, 
Kliouhl,  notwithstanding,  pay  it,  and  in  issuing  an  execution  to  enforce 
that  decision.  This  last  is  so  much  an  incident  of  the  judgment  of  a  Court 


*418]       BUKGER,  TAX  COLLECTOR,  ads,    CARTER.     273 

of  general  and  limited  jurisdiction,  that  when  found  to  follow  from  the 
decision  of  a  ministerial  oiBcer,  it  may  well  justify  the  application  of  a 
writ  to  him,  which  would  be  otherwise  wholly  inappropriate. 

Be  this,  however,  as  it  may,  the  practice  is  well  established,  has  never 
been  before  questioned,  has  operated  to  tlie  protection  of  the  citizens ; 
and,  so  far  as  our  experience  or  information  extends,  has  effected  no 
injury,  and  produced  no  inconvenience.  "We  are,  therefore  of  opinion, 
that  it  ought  not  now  to  be  disturbed,  for  tlie  sa]<e  of  obtaining  precise 
and  technical  conformity  to  the  English  precedents.  The  motion  is 
dismissed. 

*Gantt,  Evans,  Earle,  and  Butler,  JJ.,  and  D.  Johnson,  r^t-i-iQ 
Ch.,  concurred.  L 

Harper,  Ch.  I  concur  that  the  tax  was  prospective  only,  and  reserve 
my  opinion  as  to  the  authority  of  the  Court  to  grant  prohibition  in  such 
case. 

DuNKiN,  Ch.  I  concur  in  the  result,  but  give  no  opinion  on  the  ques- 
tion of  prohibition. 

Richardson,  J.,  dissenting.     Two  questions  are  before  the  Court : 

1.  Is  the  sixth  enacting  clause  of  the  tax  Act  of  1839,  withiu  the 
authority  of  the  State  Legislature  to  lay  taxes  ? 

2.  Is  the  tax  prospective  or  retrospective,  in  its  operation  ? 

This  Court  does  not  undertake  to  decide  whether  the  proposed  tax  be 
wise,  or  just,  or  onerous,  but  whether  it  is  within  the  constitutional  dele- 
gation of  the  legislative  power. 

Were  we  to  trace  the  consequences  of  such  a  tax,  we  might  perhaps, 
find  it  calculated  to  retard  the  influx  of  capital,  if  not  causing  its  efflux 
from  the  State,  and,  therefore  unwise.  It  may  be  a  high  tax,  and  un- 
looked  for,  and,  therefore,  both  unjust  and  oppressive. 

But  such  considerations,  although  apt  to  affect  the  mind  and  bias  the 
judgment,  are  for  the  Legislature  alone. 

The  office  of  the  Court  is  to  go  to  the  source  of  the  Act,  in  order  to 
discover  whether  the  enactment  of  such  a  tax  comes  within  the  proper 
legislative  authority,  or  does  it  constitute  a  penalty,  to  attach  only  after 
a  verdict  of  guilty  of  selling  "bullion,  specie,  &c."  against  the  form  of 
the  Act,  &c.  It  is  eitiier  a  tax  or  a  penalty  ;  and  to  decide  which,  we 
are  to  turn  to  the  constitution  of  the  State. 

"  The  legislative  authority  of  this  State  shall  be  vested  in  a  general 
Assembly."  (Art.  L)  And  we  need  not  labor  to  prove  that  laying 
taxes  is  within  the  legislative  autliority. 

But,  on  the  other  hand,  among  the  restrictions  upon  so  comprehensive 
an  investment  of  legislative  power,  is  the  following  :  "  No  freeman  of  this 
State  shall  be  taken,  or  imprisoned,"  &c.,  "  or  deprived  of  his  life,  liberty, 
or  property,  but  by  tlie  judgment  of  his  peers,  or  by  the  law  of  the  land." 
(Art.  9,  sec.  2.)  This  is  the  article  that  suggests  so  often  the  ex- 
♦pressive  figure,  the  ^Egis  of  the  constitution.  Here,  too,  it  is  r^.^r^ 
admitted  that,  under  this  wise,  protective  provision,  if  the  alleged  L 
tax  sliall  amount  to  a  penalty,  for  some  infraction  of  the  laws,  the  tax 
collector  cannot,  by  his  authoritv,  assess  the  penalty  under  the  name  of  a 
Vol.  I.— 19 


274  CHARLESTON,  FEBRUARY,  1841.      VOL.  I.  [*420 

tax ;  for  if  a  penalty,  a  jnry  must  decide  upon  the  supposed  infraction 
before  the  penalty  can  be  inflicted. 

Does,  or  does  not,  then,  the  alleged  tax  amount  to  a  penalty  ?  What 
is  a  tax  ? 

It  is  a  contribution,  in  money,  required  by  law  of  every  citizen,  for  his 
property,  income,  or  person,  or  for  the  use  of  any  personal  or  other  rights, 
which  are  protected  by  the  government  of  his  country. — I  have  some- 
where read  that  in  Great  Britain  every  thing  except  water  is  taxed,  in 
some  shape  ;  and  the  observation  is  characteristic  of  the  power  of  tax- 
ing whatever  is  used  or  enjoyed. 

For  instance — in  that  country,  the  use  of  light  and  air  is  paid  foT,  in 
the  window  tax — that  of  fire,  was  formerly  in  the  hearth  tax — contracts 
and  the  use  of  paper,  in  the  stamp  act.  Talents,  industry,  and  learning, 
in  the  tax  on  professions.  The  right  of  calling  debtors  to  account,  in  the 
tax  on  law  proceedings.  The  boasted  "  NuUi  vendemics  justiciam'''  of 
Magna  Charta,  has  not  shielded  judicial  justice  from  taxation,  aud  the 
established  religion  brings  with  it,  "  great  tithes  to  the  rector,  and  small 
tithes  to  the  vicar,"  All  property  is  taxed,  down  to  dogs.  Life  is 
assessed  in  the  poll  tax,  aud  the  right  to  be  buried  is  taxed,  iu  the  shroud 
recpiired  by  law. 

I  have  made  this  selection  of  taxes  from  high  authority,  in  order  to 
show  how  universal  is  the  application  of  the  taxing  power,  to  any  subject, 
or  right,  thing  or  action.  (And  if  I  may  be  indulged  in  the  incidental 
reflection — may  the  two  hundred  millions  of  dollars  now  due  by  the  indi- 
vidual States,  and  the  passion  for  borrowing  abroad,  not  bring  them  into 
this  favorite  high  road  of  our  English  ancestors  ;  or  at  least,  not  without 
their  secret  of  spending,  at  home,  the  whole  proceeds  of  the  one,  and 
keeping  there  the  entire  interest  of  the  other,  which  so  lightens  the  bur- 
den of  heavy  taxes. 

But  to  proceed — when  we  consider  that  the  foundation,  principle  and 
inseparable  duty  of  government,  is  to  protect  persons,  rights  and  pro- 
perty, it  is  but  strict  reciprocity,  that  the  commensurate  right  of  taxing 
*4211  f*^"o^vs  on  the  part  of  the  *government,  for  its  own  safety,  per- 
-l  menance  aud  policy.'  And,  that  there  can  be  no  limitation,  but 
by  some  fundamental  and  paramount  law,  or  the  change  of  rulers.  It 
is  important  in  the  consideration  of  the  case  before  the  Court,  to  call  to 
mind  the  time,  manner  and  true  end  of  taxes. 

Taxes  arc  generally  laid  annually,  because  they  are  laid  for  the  purpose 
of  raising  tlie  supplies  for  and  during  the  established  fiscal  year.  They 
arc  usually  upon  things  or  rights,  which  have  been  already  used  or  en- 
joyed ;  l)ecause  they  have  been  already  protected,  and  because  the  value 
of  such  things  or  rights  can  then  be  most  safely  estimated  and  justly 
rated.  As  to  the  manner — it  may  be  tyrannical  to  surprise  the  citizen  by 
unlookcd  for  taxes.  But  the  timely  notice  of  what  shall  be  taxed,  can  be 
seldom  given,  because  every  successive  Legislature  must  estimate  the 
supplies  for  the  coming  year— while  they  judge  by  the  actual  history  of 
the  past  year,  what  property  or  revenue,  right  or  enjoyment,  can  most 
easily  and  justly  bear  this  burden  of  taxes. 

As  to  the  character  and  end  of  taxes.  Why  is  it,  that  we  cannot 
divest  taxation  of  the  idea  of  a  loan,  advancement,  or  subsidy.  It  is 
because  they  all  depend  upon  the  actual   means.     Rents,  profits  and 


*421]       BURGER,  TAX  COLLECTOR,  (ids.    CARTER.     275 

wages  are  the  sources  of  the  supplies,  under  any  name.  And  rightly 
considered,  all  such  supplies  are  to  come  back  to  the  people,  in  some 
right,  profit  or  enjoyment.  Yet  still,  they  are  no  more  than  a  choice  of 
burdens,  and  admit  of  great  abuse. 

But,  all  that  can  be  done,  is  to  consult  the  actual  means  of  the  country, 
in  order  to  indicate  the  justice  of  all  taxes.  And  we  see,  at  a  glance,  the 
sagacity  of  the  Legislature  which,  by  wise  laws,  draws  into  its  own  State 
pecuniary  means,  making,  in  this  way,  the  wealth  of  foreign  nations  tribu- 
tary to  the  welfare  of  their  own.  And  how  unwise  to  occasion  the  efflux 
of  capital  or  interest — transferring  to  othei's  the  industry  of  their  country. 
And  here,  at  least,  for  the  argument  sake,  let  the  brokers'  tax  be  considered 
of  this  character. 

The  principles  noticed  are  self-evident,  and  exhibit  their  own  reason. 
And  the  following  rule  is  evidently  deduced  from  them.  It  is  considered 
(see  1  Coram,  c.  8,)  as  a  rule  of  construction  of  revenue  acts,  in  ambigu- 
ous cases,  to  lean  in  favor  of  revenue.  This  rule,  says  the  great  commen- 
tator, will  be  found  to  be  agreeable  to  good  policy  and  the  public 
interest*  But  it  is  still  more  clear,  as  our  own  rule,  that  the  r>ic  ,99 
Court  is  to  hold  all  Act  of  the  Legislature  constitutional,  unless  ^ 
clearly  repugnant  to  the  paramount  law  of  the  constitution. 

Now,  then,  let  us  apply  these  well  established  rules,  and  such  principles, 
in  the  construction  of  the  tax  Act  of  1839.  After  several  other  taxes, 
the  Act  proceeds  in  these  words,  "  thirty  cents,  ad  valorem,  on  every 
hundred  dollars,  on  the  value  of  all  lots,  lands,  and  buildings,  within  any 
city,  including  all  lots  or  portions  of  land  on  which  buildings  may  he 
erected,  in  the  immediate  vicinity  of  any  city,  &c.  Sixty  cents  per 
hundred  dollars  on  factorage  employments,  &c.  ;  and  on  the  amount  of 
commissions  received  by  vendue-masters,  and  commission  merchants,  &c., 
one-eighth  of  one  percent,  upon  all  purchases  and  sales  of  Inillion,  specie, 
bank  notes,  bills  of  exchange  and  stocks,  which  may  be  made  by  any  brokers 
or  agents  in  this  State,  for  or  on  account  of  any  bank,  company,  or  indi- 
vidual, without  the  State ;  and  also  upon  all  such  purchases  and  sales  as  may 
be  made  by  any  such  broker  or  agent,  upon  his  own  account,  or  for  account 
of  others  engaged  in  the  same  pursuits;  to  be  ascertained  and  rated  by 
the  assessors  and  collectors  throughout  the  State,  according  to  the  best 
of  their  knowledge  and  information,"  &c. 

It  is  supposed  that  the  tax  of  one-eighth  of  one  per  cent,  upon  "bul- 
lion, specie,"  &c.,  may  be  unconstitutional.  But  such  sales  are  the  ways 
and  means  of  profit  and  wages  to  the  broker ;  and,  being  protected,  are 
subjects  for  taxation,  like  the  sales  of  auctioneers  or  factors.  And  tlie 
tax  is  as  well  rated  or  measured  by  the  amount  of  sales,  as  by  the  com- 
missions of  the  broker.     They  are  the  same  measure  essentially. 

It  is  argued  that  it  amounts  to  a  double  tax.  But  that  would  only 
make  it  a  high  tax — not  render  it  unconstitutional.  All  absentees  pay  a 
double  tax ;  upon  the  wise  rule,  that  we  should  discourage  the  efflux  of 
money.  And  assuredly,  a  double  or  high  tax  may  be  laid  for  other 
causes.  Any  man  may  act  as  factor,  broker  and  auctioneer,  and  render 
return  for  each  employment  respectively.  Rich  men  make  returns  for 
various  property.  And  he  that  carries  on  many  professions  must  do  the 
same  ;  and  ought  not  to  complain,  if  all  his  ways  and  means  are  made  to 


276  CHARLESTON,  FEBRUARY,  1841.      VOL    I.  [*422 

contribnte.  In  answer  to  this  part  of  the  argument,  it  ought  to  be 
^  .f,o-i  enough  to  say,  that  the  *sales  of  "  bullion,  specie,''  &c.,  being  tax- 
-^  able,  the  salesman  must  pay  the  tax  laid  according  to  law. 

But  the  great  and  true  objection  is,  that  this  tax  amounts  to  a  penalty. 
If  it  be  so,  the  relator  is  shielded  by  the  ninth  article  of  the  constitution, 
already  recited.  But  why  is  this  tax  more  a  penalty  than  the  common  tax 
upon  auctioneers,  factors  or  commission  merchants  ?  This  is  not  a  pe- 
cuniary fine  for  doing  an  unlawful  act,  but  a  contribution  for  being  pro- 
tected in  making  profit  and  wages — and  of  selling  "  bullion,  specie,"  &c. 
It  is,  surely,  one  of  the  lawful  ways  and  means  of  profit.  For  my  own 
part,  I  do  wish  that  we  had  here,  in  our  commercial  capital,  the  sales  of 
all  bullion,  specie,  bank  notes,  bills  of  exchange,  and  stocks,  sold  in  the 
United  States.  Such  a  mart  would  do  more  for  our  foreign  exchanges, 
perhaps  more  for  our  commercial  advancement,  than  the  great  Western 
Railroad  completed  to  the  Ohio,  and  the  direct  trade  with  Europe,  both 
of  which  are  so  justly  desired  ;  and  my  only  objection  to  the  tax  is,  that 
it  may  check  the  influx  of  such  rich  ways  and  means.  What  would  the 
Lord  Mayor  and  Common  Council  of  London  think,  if  the  sales  of 
American  and  other  foreign  stocks  were  checked  by  a  high  excise  duty. 

I  trust  that,  in  these  incidental  observations,  it  will  be  seen  that  the 
fairest  play  is  given  to  the  argument  against  the  tax.  I  defend  its 
constitutionality  only. 

Under  the  head  of  penalty,  the  case  of  the  State  vs.  Allen,  (2  McC. 
55)  is  relied  upon  ;  and  the  argument  is,  that  courts  should  be  uniform 
in  their  decisions  upon  similar  cases.  This  is  most  true.  Therefore,  let 
us  consider  that  adjudication.  In  the  mean  time,  I  cannot  but  antici- 
pate that  the  argument,  from  uniformity  will  presently  change  sides. 

The  tax  Act  of  1820  imposed,  in  terms,  a  tax  of  $1U,000  upon  any 
person  "who  shall,  after  the  passing  of  this  Act,  open,  or  keep  open,  any 
oCQce  for  the  sale  of  any  lottery  tickets."  The  so-called  tax  was  not 
measured,  or  rated,  by  the  sales,  profits,  or  success  of  the  lottery  office. 
It  was  the  plain  infliction  of  a  specific  fine,  for  opening,  in  future,  such  a 
source  of  excitement  to  gambling  propensities  as  a  lottery  office. 
Whether  the  ofiice  sold  a  single  ticket  or  many  thousand,  the  fine  was  the 


* 


424] 


same.     Of  course,  there  was  nothing  *for  the  tax-collector  to 


assess.  The  supposed  tax  bore,  then,  every  mark  of  penalty  or 
punishment  for  an  act  done,  or  at  least,  for  a  privilege  assumed  ;  and  it 
ibllowcd,  that  the  party  accused,  must  be  first  convicted  by  a  jury,  upon 
which  the  fine  followed,  subject  to  the  pardoning  power  of  the  Governor. 

The  ninth  section  of  our  present  tax  Act  illustrates  the  principles  of 
Allen's  case.  Any  person  may  now  purchase  the  privilege  of  vending 
lottery  tickets  for  ^2000,  but  on  default,  he  is  subject  to  the  same  fine  of 
810,(100;  so  that  it  was,  and  is,  a  penal  enactment.  But  the  tax  before 
the  court,  has  no  characteristic  of  the  kind.  But  suppose  that  doubtful, 
nre  we  not,  then,  to  api)ly  the  rules  before  laid  down  ?  The  construction 
is  to  lie  favoral)lc  for  raising  the  supplies  of  the  State  ;  and  no  Act  is  to 
l)e  held  unconstitutional,  unless  it  be  clearly  at  war  with  the  constitution 
of  the  State. 

Of  tliis  last  rule,  I  beg  to  be  indulged  in  a  brief  exposition,  for  its 

mportance  sake,  on  l)oth  sides  of  the  present  case ;  and  especially  because 

't-   F  'V,  think  that  motions  for  prohibitions  are  getting  somewhat 


*424]  BURGER,  TAX    COLLECTOR,    acls.    CARTER.  277 

rife.     And  it.  may  be  better  to  resist  their  undue  encroachments,  than  to 
have  to  cure  their  evils 

The  constitution,  and  all  statutes  passed,  are  simply  laws  intended  to 
be  made,  "in  2^fi'>'i  materia'''- — upon  the  same  subject.  Every  Act 
applies  and  illustrates  some  authority  of  the  constitution,  by  practical 
.example  and  enforcement.  It  follows,  that  the  secondary  law  of  the 
Act,  to  be  good  and  valid,  must  be  inseparable  from  the  jirimary  princi- 
ples of  the  constitution,  which  is,  at  once,  its  source  and  its  warrant, 
llence,  it  is,  that  we  are  to  apply  the  principles  of  the  one,  in  order  to 
test  the  validity  of  the  other.  And  hence,  too,  tlie  unavoidable  judicial 
duty,  not  privilege,  so  to  apply  the  constitutional  test,  as  to  declare  the 
supposed  law  of  the  Act,  valid  or  void,  as  it  may  be  found  united  with, 
or  repugnant  to,  the  law  of  the  constitution.  It  equally  follows,  that 
where  there  is  any  union  between  the  law  and  the  constitution,  the  Act 
is  within  the  Legislative  authority.  And  being  truly  in  pari  materia, 
it  must  stand. 

If  I  may  use  a  figure  of  speech — wherever  the  parent  law  of  the  con- 
stitution tolerates  the  Act  as  its  offspring,  it  is  legitimate,  *how-  r^i^r 
ever   deformed   in  our   eyes.      And,   of  course,  he   that  would  ^ 
repudinte  an  Act,  takes  the  burden  of  proving  its  repugnancy  upon  his 
own  shoulders. 

To  this  exposition,  let  me  add,  that  a  revenue  Act  is  among  the  last 
of  all  laws  in  which  Courts  should  be  placed  in  conflict  with  the  Legis- 
lative department.  Because  the  subject  and  extent  of  taxes  are  neces- 
sarily at  the  Legislative  discretion,  and  Courts  cannot  interfere  with  the 
discretion,  so  vested  in  another  department  of  government. 

Having  now  established,  that  the  broker's  tax  is  no  penalty,  but 
plainly  a  tax,  within  the  legislative  authority  to  tax  ;  and  I  would  apolo- 
gize for  exhausting  time  upon  so  plain  a  proposition,  did  I  not  feel,  that 
a  thorough  conviction  on  that  head  of  the  argument,  is  the  proper  and 
unerring  clue  to  the  true  exposition  of  the  second  and  final  proposition  : 
I  do  not  speak  beyond  my  conviction,  in  saying — grant  the  first,  you 
give  the  second  ;  and  that  the  prohibition  ordered,  can  be  su})ported, 
only  by  upholding  the  entire  decision  of  the  Circuit  Judge.  And  I  now, 
therefore,  lay  down  the  proposition,  so  established,  as  decisive  of  the 
second  question  of  the  case. 

Doubtful  words  are  expounded  by  their  subject  matter.  If,  then,  the 
new  tax  upon  brokers  be  itself  constitutional,  it  is,  then,  to  be  assessed 
and  paid,  unless  otherwise  plainly  expressed,  like  other  and  former  taxes 
— i.  e.  under  the  Act  of  1788,  for  expoundiug  all  our  annual  tax  Acts. 
And  all  that  I  have  said,  upon  the  union  between  Acts  and  the  constitu- 
tion, would  apply  equally  to  the  Acts  of  1839  and  1788 — we  cannot 
uncouple  them.  And  I  might,  here,  well  ask  more  than  I  demand — 
that  unless  the  Act  of  1839  be  expressly  future  and  prospective,  as  to  the 
tax,  it  is  ipso  facto  retroactive,  and  enacts  a  tax  for  the  past  fiscal  year. 
And,  I  here  admit,  that  if  the  tax  on  brokers  were  plainly  prospective, 
it  would  then  have  one  mark  of  a  penal  enactment,  and  militate  against 
my  first  proposition. 

But  let  us  turn  untrammelled  to  the  terms  of  the  Act — "  one  eighth 
of  one  per  cent,  upon  all  purchases,  sales,"  &c.,  which  may  be  made,  by 
any  brokers  or  agents. 


'2'iS  CHARLESTOX,  FEBRUARY,  18J:1.      VOL.  I.  [*J:25 

Do  these  words  mean  "sales  which  may  have  been  made,"  so  as  to 
relate  back  to  the  past  fiscal  year,  or  do  they  mean  such  sales  as  shall  be 
^  „-,  made,  after  passing  the  Act  of  1839  ?  and  *thus  give  no  authority 
*'^"  -I   for  the  assessment  made,  of  the  1st  of  October,  preceding. 

j'irst The  former  is,  in  my  judgment,  the  true  grammatical  construc- 
tion ;  "  sales  which  may  be  niade,"  mean — which  may  Aat-e  been  made, 
rather  than  sales  which  shall  be  made.  I  would  say  this,  independent 
of  the  Act  of  IT 88.     Because, 

Secondly It  is  the  only  construction  that  can  make  the  words  answer 

to  the  apparent,  if  not  professed,  object  of  the  Act  to  raise  supplies,  in 
the  usual  way,  by  rates  or  taxes,  upon  things,  rights,  and  profits,  already 
protected  and  realized. 

Thirdly — It  is  the  only  construction  that  can  couple  the  Act  for 
raising  the  brokers'  tax  with  the  Act  of  USS,  which  has  usually  formed 
the  exponent  of  all  our  tax  Acts,  and  made  the  taxes  laid  relate  back  to 
the  first  of  October  preceding.     And, 

Fourthly — The  words  used  constitute  the  common  phraseology  of  our 
tax  Acts,  in  similar  cases,  and  have  been  before  construed  in  practice,  to 
make  the  assessment  relate  back  to  the  first  of  October. 

For  instance,  take  the  fourth  tax  laid  by  the  very  Act  of  1839.  "  Thirty 
cents  ad  valorem,"  &c.,  "on  lots,"  &c.,  "on  which  buildings  may  he 
erected^  No  one  has  questioned  the  retrospective  meaning  of  these 
words,  and  the  established  construction  is,  that  the  tax  is  laid  on  build- 
ings erected  before  the  first  of  October  last  past."  Does  not  the  use  of 
words  make  the  law  of  their  construction  ?  How,  then,  I  ask,  can  it  be, 
that  "sales,"  &c.,  "  which  can  be  made,"  mean  sales  that  shall  be  made 
after  ])assing  the  Act  ?  Will  the  Court,  by  a  new  construction  of  such 
words,  put  it  at  the  discretion  of  every  householder  in  a  town  or  village, 
to  avoid  the  present  tax  upon  his  building,  by  submitting,  that  the  tax  is 
only  on  buildings  that  shall  be  erected,  and  thus  make  the  exception 
introduced  by  the  Act  itself,  in  Allen's  case,  the  common  rule  for  the  tax 
collector,  in  all  his  assessments  of  houses,  "  which  may  be  erected  ?"  Will 
the  Court  instruct  him  to  read  the  sentence  as  if  written — shall  be  erected  ? 
Wliat  a  practical  illustration  would  we  have  that  revenue  laws  are  to  be 
construed  fuvoralily  for  the  State  revenue  !  And  what  would  become  of 
the  argument  for  uniformity  ? 

But,  if  we  want  additional  reason  for  the  usual  construction  of  tlie 
words,  "  may  be  erected,"  or  "  may  be  made" — have  we  not  wliat  is 
*jg^-i  wanted,  in  the  princii)le,  that  taxes  are  commonly*  laid,  and 
^  ought  to  be  laid,  ui)on  riglits  that  have  been  already  enjoyed, 
under  the  protection  of  government?  If  this  be  a  sound  princii)le  for 
raising  revenue  Ijy  taxation,  does  it  not  lead  us,  as  by  the  hand,  to  the 
retrospective  operation  of  tlie  words,  "sales  which  may  be  made." 

Upon  the  wliole,  then,  in  this  case,  so  important  in  its  principles — 
disabusing  my  understanding  of  the  excitement  caused  by  a  new  and  high, 
and,  ]»erhaps,  unwise  tax,  and  releasing  it  from  authority,  I  can  perceive 
no  i)eiiaUy,  and  nothing  repugnant  to  the  constitution,  in  the  tax  laid  on 
brokers.  Nor  can  I  discover  that  it  differs  from  other  similar  taxes,  in 
the  time  of  its  assessment.  And  the  conclusion  follows,  that  the  deci- 
sion granting  the  i)roliibition,  should  be  reversed ;  and  that  the  relator 
be  re(jnired  to  declare  in  prohibition,  in  order  to  try  the  fact  whether  he 


*427]  BURGER,  TAX   COLLECTOR,   (ids.   CARTER.  279 

was  a  broker,  within  the  meaning  of  the  Act.  This  he  denies  ;  and  he 
must  be  heard  upon  the  question  of  fact.  For,  in  this,  Mr.  Carter  is 
under  the  9lli  article  of  the  constitution.  And  the  tax  will  attach,  or 
not,  according  to  the  verdict  that  shall  be  rendered,  upon  the  question, 
is  he,  or  not,  a  broker  or  agent,  within  the  meaning  of  the  Act. 

Johnston,  Ch.,  signed  neither  opinion. 

See  Citij  Council  ads.  Weston,  Harp.  340;  reversed  2  Pat.  449,  or  8  Curt.  171  ; 
Birney  vs.  Tax  Collector,  2  ISaiL  654;  Bulow  vs.  City  Council,  1  N.  &  McC.  527; 
Copes  vs.  City  Council,  10  Rich.  495,  and  cases  there  cited ;  State  Bank  vs.  City 
Council,  3  Rich.  342;  State  ex.  rel.,  Ravenal  et  al.  vs.  City  Council,  4  Rich.  28(3; 
State  ex  rel.,  Sebring  et  al.  vs.  Citij  Council,  5  Rich.  561  ;  State  ex  rel.  Adyer  vs. 
City  Council,  2  Sp.  Tl"9  ;  4  Stroh.  217  ;  McMul.  Eq.  144  ;  2  Sp.  491,  623;  10  Rich. 
104,  240,  474.     An. 


APPENDIX  TO  YOL.  I. 


*It  has  happened,  from  time  to  time,  that  cases  which  should 
*429j 

have  been  reported,  have,  from  accident  or  other  cause,  been 

omitted  by  my  predecessors.  In  the  course  of  a  few  years  past,  they  have 
swelled  to  a  considerable  number,  many  of  them  containing  decisions  of 
much  importance.  At  the  request  of  their  Honors,  with  an  expense  of 
some  time  and  labor,  I  have  collected,  prepared,  and  now  publish  these 
cases;  and  trust  that  in  doing  so,  I  render  a  service  which  will  be  accept- 
able to  the  profession  and  the  State. 

J.  J.    McMULLAN. 


CASES    AT    LAW 

FROM  1835,  TO  DECEMBER,   1840. 

NOT  HERETOFORE  PUBLISHED. 


The  Bank  of  the  State  op  South  Carolina  vs.  John  Bowie,  (a) 

A  verdict  for  a  specified  sum  of  money,  "witli  interest  tliereon  from  the  16th 
February,  183G,"  is  not  void  for  uncertainty,  either  as  to  the  principal  sum  or 
the  interest ;  biit  the  plaintiff  is  entitled  to  sign  judgment  for  Loth,  computing 
the  interest  according  to  the  verdict ;  even  if  the  demand  be  unlicLuidated. 

Before  Earle,  J.,  at  Barnwell,  Spring  Term,  1839. 

John  Bowie  bad  been  the  agent  of  the  Bank,  at  Aitkin,  and  had  entered 
into  bond,  with  several  securities,  for  the  faithful  performance  of  his  agency. 
Separate  actions  were  brought  against  them,  and  a  verdict  was  rendered 
for  the  plaintiff  in  these  words  :  "We  find  for  the  plaintiff  the  sum  of 
eleven  thousand  seven  hundred  and  twenty-one  dollars  and  eleven  cents, 
with  interest  from  the  16th  Fcbruar}^,  1836." 

On  the  return  of  a  rule  to  show  cause,  it  was  moved  by  Mr.  Bellinger, 
for  the  defendant,  to  set  aside  the  judgment,  which  was  signed  for  the 
entire  sum  of  principal  and  interest,  according  to  the  verdict,  as  irregular 
and  void,  for  the  excess  over  $11,721  11,  unless  the  same  should  be 
remitted  by  the  plaintiff.  The  motion  was  refused ;  and  a  motion  was 
made  in  the  Court  of  Appeals  to  reverse  that  decision. 

*Appeal  determined  at  Charleston,  February,  1840.  [*430 

Curia,  per  Earle,  J.  When  this  motion  was  made  in  the  Circuit 
Court,  I  thought  there  was  something  in  it  more  entitled  to  consideration 
than  I  now  find.  I  learn,  on  conferring  with  my  brethren,  and  also  from 
the  bar,  that  this  form  of  verdict  is  in  very  general  use,  and  that  it  has 
not  heretofore  been  questioned.  So  many  rights  have  become  vested 
under  this  form,  that  it  would  be  extremely  prejudicial  to  shake  it,  even 
if  there  were  greater  difficulty  on  the  ground  of  principle  than  I  think 
there  is. 

A  verdict  must  find  the  fact  in  issue;  and  if  for  the  plaintiff,  must 
assess  his  damages,  if  they  be  the  subject  of  the  action.  It  is  said  in 
Com.  Dig.  Pleader,  "  the  verdict  must  find  the  fact  clear  to  a  common 
intent;"  and  elsewhere  that  "certainty  to  a  common  intent  is  sufficient." 
It  would  be  idle  here  to  enter  into  the  distinctions  between  the  different 
kinds  and  degrees  of  certainty  required  in  pleading,  which  a  learned  Ch. 

(rt)  S.  C.  again,  3  Strob.  439. 


282  CHARLESTON,  FEBRUARY,  1840.      APP.  VOL.  I.       [*430 

Justice,  in  England,  once  denominated  "senseless  jargon."  It  -will  be 
enough  if  the  verdict  here  shall  be  found  suflBciently  certain  to  enable  the 
Coui-t  to  render  judgment  upon  it. 

It  is  said,  (Com.  Dig.)  "A  verdict  is  bad  in  ejectment  for  four  acres 
of  land,  if  it  find  the  "defendant  guilty  of  eight  pieces  of  land,  without 
other  certainty;  and  in  an  action  on  a  penal  statute,  which  gives  a 
penalty  for  every  oiTence,  if  it  find  the  defendant  guilty,  contrary  to  the 
statute,  but  do  not  say  how  often  he  is  guilty."  If  the  jnry,  in  the 
former  case,  had  found  the  quantity  in  each  of  the  eight  pieces  of  laud, 
or  in  the  latter  how  often  the  defendant  was  guilty,  the  Court  might 
have  given  judgment,  for  the  means  of  removing  the  uncertainty  would 
have  been  furnished.  So  in  Wwdhmii's  case,  decided  this  term,  a  ver- 
dict of  guilty  only,  on  an  indictment  against  the  defendant,  for  stealing 
twenty  head  of  cattle,  was  held  to  be  bad.  Suppose  an  action  qui  tarn 
were  given  in  such  a  case,  and  on  the  trial  the  juiy  should  find  for  the 
plaintiff,  and  that  the  defendant  stole  ten  head  of  cattle  ;  the  amount  of 
the  recovery  is  rendered  certain  enough ;  and  the  Court  would  only  direct 
the  clerk  to  compute  the  sum  from  the  finding  of  the  jury. 

The  objection  here  is,  that  the  demand  of  the  plaintiff  was  not  liqui- 
dated ;  that  the  jury  could  only  give  interest  by  way  of  damages,  and  they 
have  not  so  allowed  it  The  case  was  one  in  which  it  was  clearly  proper 
that  interest  should  be  allowed  The  jury  have  found  for  the  plaintiff  on 
the  issue,  and  although  they  have  not  assessed  a  specific  sura  for  his  entire 
damages,  yet  they  have  furnished  certain  data  by  which  the  Court  can, 
with  the  same  facility,  ascertain  the  amount,  as  in  the  case  of  a  promis- 
sory note,  on  which  there  is  judgment  by  default,  and  it  is  referred  to  the 
clerk  to  compute.  They  have  ascertained  and  assessed  the  sum  for  which 
the  defendant  was  liable,  on  the  IGth  February,  1836,  from  which  date 
^,o|-i  they  *allow  interest,  and  the  Court  has  only  to  direct  the  clerk  to 
-J  compute  the  interest. 

This  Court  perceives  no  sufficient  ground  to  set  aside  the  judgment, 
although  it  is  a  more  regular  and  better  practice  to  find  a  round  sum ; 
where  the  demand  is  not  liquidated.     Motion  refused. 

In  tlie  other  cases  against  the  securities,  the  same  motion  was  made 
and  likewise  refused. 

See  Sup.  302.     2in. 

Note. — In  Ilarri/fon  vs.  Allen,  (2  Bing.  4,)  the  verdict  was  for  £196,  with  in- 
terest from  March,  1819,  and  no  objection  taken  in  point  of  form ;  and  the  same 
form  of  verdict  will  bo  found  in  4  Munf.  37,  without  exception,  although  there 
was  an  appoal  on  other  grounds. 

Reporter. 


*431] 


BANK    VS.    LEVY.  283 


The  Bank  of  the  State  of  South  Carolina  vs.  Jacob  C.  Levy. 
The  Bank  of  Charleston  vs.  The  Same. 

To  enable  a  garnishee  in  attachment  to  retain  the  goods  in  his  hands,  it  is  not 
necessary  that  he  should  prove  himself  to  be  a  creditor  entitled  to  bring  an 
action  ;  it  is  enough  if  he  establishes  a  lien,  even  for  outstanding  liabilities  in- 
curred for  the  defendant,  and  absent  debtor,  which  creates  a  special  property, 
until  discharged,  and  overreaches  the  claim  of  the  attaching  creditor,  (a) 

An  agent  here,  who,  for  a  commission,  negotiates  exchanges  for  a  house  in  New 
York,  who  buys  bills  on  Europe  for  them,  and  to  raise  the  funds  for  that  pur- 
pose, draws  and  sells  bills  upon  them  at  home  for  corresponding  amounts,  some 
of  which  they  accept,  and  others  do  not,  and  the  bills  are  protested,  such  agent, 
on  the  failure  of  the  principal  house,  has  a  lien  on  any  funds  or  securities  which 
come  to  his  hands  for  his  principals,  to  secure  himself  against  these  outstanding 
liabilities,  although  in  fact  he  may  not  have  paid  any  of  the  bills. 

And  there  is  no  difference  between  bills  accepted  and  not  paid,  and  bills  not 
accepted.  Tlie  lien  extends  to  'all  equally.  Nor  does  it  make  any  diffei'ence, 
that  the  funds  and  securities  come  to  hand  after  the  liability  is  incurred,  and 
therefore  were  not  looked  to  as  an  indemnity  at  the  time. 

Before  Earle,  J.,  at  Charleston,  May  Term,  1839. 

On  the  13th  day  of  April,  1837,  the  Bank  of  the  State  of  South  Caro- 
lina sued  out  an  attachment  against  J.  L.  &  S.  Joseph  &  Co.  The  Bank 
"^of  Charleston  also  sued  out  an  attachment  against  them  ;  both  r^ioo 
made  returnable  to  May  Term,  1837,  and  copies  thereof  were  duly  ^ 
served  on  Jacob  C.  Levy,  as  garnishee  who,  on  the  tirst  of  January,  1838, 
made  the  following  return,  on  oath  : 

"  Personally  appeared  the  said  Jacob  G.  Levy,  of  Charleston,  merchant,  on 
whom  copies  of  the  writs  of  attachment  in  these  cases  respectively  have  been 
served,  who,  being  duly  sworn,  maketh  oath  and  saith,  that  he  has  not  now,  nor 
had  at  the  time  of  service  on  him  of  the  said  copies  of  the  said  writs,  or  either  of 
them,  nor  has  he  at  any  time  since  had  in  his  hands,  custody,  possession,  or 
power,  any  moneys,  goods,  chattels,  debts,  books  of  account,  lands,  leasehold 
estates,  and  chattels  real,  belonging  to  the  above  named  J.  L.  &  S.  Joseph  &  Co., 
or  either  of  them,  or  in  which  they  have,  or  either  of  them  has,  any  right,  claim 
or  property  whatsoever ;  save  and  except  that  at  the  time  of  the  service  on  him, 
the  said  Jacob  C.  Levy,  of  the  copies  of  the  said  writs  of  attachment  against  the 
said  J.  L.  &  S.  Joseph  &  Co.,  he,  the  said  Jacob  C.  Levy,  held  in  his  hands  sundry 
accepted  bills  of  exchange,  promissory  notes,  securities,  and  other  property  spe- 
cified and  set  forth  in  a  schedule  hereunto  annexed,  subject  to  his  claims  as 
creditor,  in  possession,  and  as  collateral  security  for,  and  on  account  of,  purchases 
made,  moneys  advanced,  and  responsibilities  incurred,  by  him,  the  said  Jacob  C. 
Levy,  for  the  said  J.  L.  &  S.  Josei)h  &  Co.,  and  on  account  between  the  said 
J.  L.  &  S.  Joseph  &  Co.,  and  him  the  said  Jacob  C.  Levy.  That  they,  the  said 
J.  L.  &  S.  Joseph  &  Co.,  are  justly  due  and  owing  to  him,  the  said  Jacob  C.  Levy, 
in  the  full  and  just  sum  of  two  hundred  and  five  thousand  two  hundred  and  nine- 
teen dollars,  ninety-three  cents,  for  purchases  made,  moneys  advanced,  and  re- 
sponsibilities ircurred,  by  him,  the  said  Jacob  C.  Levy,  for  them,  and  on  an 
account  between  them  and  him,  the  said  Jacob  C.  Levy.  That  since  the  service 
on  him.  the  said  Jacob  C.  Levy,  of  the  said  copies  of  the  said  writs  of  attachment, 
some  of  the  said  bills  of  exchange  and  promissory  notes  so  held  by  him,  the  said 
Jacob  C.  Levy,  have  been  paid,  to  the  amount  of  seven  thousand  six  hundred  and 
thirty-four  dollars,  forty-seven  cents  ;  and  that  since  the  service  on  him,  the  said 
Jacob  C.  Levy,  of  the  said  copies  of  the  said  writs  of  attachment,  he,  the  said 
Jacob  C.  Levy,  has  absolutely  assigned,  transferred,  and  delivered  all  the  moneys 

(a)  See  1  Rich.  Eq.  360. 


284  CHARLESTO:^,  FEBRUARY,  1840.      APP.  VOL.  I.       [*432 

collected  by  him  as  aforesaid,  camounting  to  seven  thousand  six  hundred  and 
thirty-four'  dollars  forty-seven  cents,  and  the  remainder  of  the  said  bills  of  ex- 
change, promissory  notes,  securities,  and  other  property,  in  the  said  schedule 
hereunto  annexed  mentioned,  to  Robert  B.  Gilchrist,  under  a  deed  of  assignment 
to  him,  of  the  twenty-ninth  day  of  September  last,  in  trust  for  the  creditors  of 
him,  the  said  Jacob  C.  Levy,  according  to  the  trusts  declared  in  the  said  assign- 
ment, duly  proved  and  recorded  in  the  ofiice  of  the  Secretary  of  State,  in  Charles- 
*jQQi  ton  aforesaid,  in  *the  books  of  miscellaneous  records,  5  U.  S.  page  47,  forty- 
-•  seven,  to  55,  fifty-five,  and  hereby  specially  referred  to  as  part  of  this 
return. ' ' 

To  this  return  of  the  garnishee,  the  plaintiffs  in  attachment  filed  their 
suggestions,  expressing  their  dissatisfaction  with,  and  denying  the  truth 
of,  the  return  as  made  by  the  garnishee,  of  the  indebtedness  of  the  said 
Josephs  &  Co.  to  him,  the  said  Jacob  C.  Levy ;  in  the  sum  of  money 
expressed  in  said  return  ;  and  also  denying  the  right  in  law,  as  claimed 
by  him,  the  said  Jacob  C.  Levy,  to  retain  the  said  moneys  and  securities, 
for  payment  of  money  as  creditor  of  the  said  J.  L.  &  S.  Joseph  &  Co., 
in  possession  ;  and  the  indebtedness  of  the  said  J.  L.  &  S.  Josepli  &  Co., 
to  the  said  Jacob  C.  Levy,  in  any  sum  exceeding  or  equal  to  the  value 
of  the  moneys,  and  securities  for  the  payment  of  money,  so  levied  on  and 
attached. 

Pending  these  suggestions,  the  garnishee,  Jacob  C.  Levy,  filed  his 
declaration  as  creditor  in  possession,  pursuant  to  the  attachment  Act, 
and  annexing  an  account  current  between  himself  and  the  said  J,  L.  &  S. 
Josei)h  &  Co.,  in  which  the  said  J.  L.  &  S.  Joseph  &  Co.  were  debited 
with  sterling  and  other  foreign  bills  of  exchange,  purchased  by  the  gar- 
nishee, Jacob  C  Levy,  on  their  account,  and  transmitted  to  them,  with 
the  commissions  and  other  charges,  to  the  amount  of  four  hundred  and 
thirty-two  thousand,  four  hundred  and  twenty-one  dollars,  twenty-five 
cents ;  and  credited  with  bills  drawn  by  the  garnishee  on,  and  paid  by, 
the  said  J.  L.  &  S.  Joseph  &  Co.,  at  maturity,  and  the  proceeds  of 
paper  and  other  funds  remitted  by  them  to  Jacob  C.  Levy,  the  garnishee, 
amounting  to  two  hundred  and  twenty-seven  thousand  two  hundred  and 
one  dollars,  thirly-two  cents. 

On  the  nth  June,  1839,  a  verdict  had  been  rendered  in  that  proceed- 
ing in  favor  of  the  said  Jacob  C.  Levy,  to  the  amount  of  two  hundred 
and  five  thousand,  two  hundred  and  nineteen  dollars,  ninety-three  cents, 
with  interest  from  the  25th  of  April,  1837,  being  a  balance  due  on  the 
aforesaid  account,  on  which  verdict  judgment  has  since,  to  wit :  on  the 
15th  June,  1839,  been  entered  up  for  two  hundred  and  thirty-seven  thou- 
sand and  thirteen  dollars,  seventy-eight  cents. 

On  the  trial  of  the  suggestions,  the  garnishee  introduced  this  recovery 
in  evidence  ;  also,  sundry  letters  from  the  said  J.  L.  &  S.  Joseph  &  Co. 
to  the  said  Jacob  C  Levy.  In  one  of  these  letters,  dated  20th  April, 
1837,  the  Josephs  &  Co.  express  the  most  anxious  concern  on  account  of 
the  situation  in  which  the  garnishee,  Jacob  C.  Levy,  had  been  placed, 
by  Ills  agency  in  iheir  affairs,  portraying  their  own  sinking  condition, 
and  the  small  hope  which  remained  of  meeting  with  relief.  In  reference 
to  tlie  garnishee,  Jacob  C.  Levy,  they  say  :  "We  are  happy  that  you 
have  the  means  in  your  power  to  protect  yourself,  as  far  as  the  i)aper 
goes  which  is  in  your  hands  for  collection  ;  the  proceeds  of  that  paper, 
you  will  apply  to  the  rniuidalion  of  the  claims  against  you  and  ourselves, 


*433]  BANK   VS.    LEVY.  285 

arising:  from  your  drafts."  The  debit  side  of  the  account  of  the  garnishee, 
Levy,  was  not  disputed  by  *the  plaintiffs,  at  the  trial  of  the  sug-  r^^Ao^ 
gestions,  but  it  was  contended  by  them  that  the  Josephs  &  Co.  '- 
were  entitled  to  be  credited  in  that  account  with  the  bills  of  exchange 
drawn  by  Levy  on  them,  accepted  by  them,  and  dishonored  at  maturity, 
and  protested  bills  and  notes  discounted  in  Charleston,  with  the  endorse- 
ment of  Lev)'',  and  unpaid  at  maturity  ;  and  a  paper  was  adduced  in 
evidence  liy  the  plaintiffs,  submitted  by  the  defendant,  at  their  request, 
containing  a  statement  of  bills  drawn  by  J.  C.  Levy  on  J.  L.  &  S. 
Joseph  &  Co.,  protested  for  non-payment,  for  which  the  said  J.  C.  Levy 
had  placed  funds  in  their  hands  ;  the  said  J.  L.  &  S.  Joseph  &  Co. 
being  credited  with  the  amount  of  the  said  bills  at  the  time  they  were 
drawn,  and  the  same  afterwards  withdrawn  from  the  account  current 
between  the  said  parties  when  the  said  bills  were  dishonored,  amounting 
to  $179,506.64  ;  and  a  statement  of  protested  bills  and  notes  discounted 
in  Charleston,  with  the  endorsement  of  J.  C.  Levy,  for  the  nett  proceeds 
of  which  J.  L.  &  S.  Joseph  &  Co.  were  credited  on  account  current,  at 
the  time  of  discount,  and  the  same  withdrawn  from  the  account  current, 
said  bills  and  notes  being  unpaid  at  maturity,  amounting  to  $19,64:7.02. 
In  that  paper  was  also  contained  a  statement  of  bills  drawn  by  J.  C. 
Levy  on  J.  L.  &  S.  Joseph  &  Co.,  protested  for  non-acceptance  and 
non-payment,  for  which  the  said  J.  C.  Levy  had  placed  funds  in  their 
hands ;  the  said  J.  L.  &  S.  Joseph  &  Co.  being  credited  with  the 
amounts  of  said  bills,  at  the  time  they  were  drawn,  and  the  same  after- 
wards withdrawn  from  the  account  current  between  the  said  parties,  when 
the  said  bills  were  dishonored,  amounting  to  $5,407.29,  and  refused 
acceptance  by  the  said  J.  L.  &  S.  Joseph  &  Co.  It  was  admitted  at 
the  trial  of  the  suggestions,  that  the  same  were  properly  withdrawn  from 
the  account  current  between  the  said  parties,  and  the  said  J.  L.  &  S. 
Joseph  &  Co.  properly  chargeable  with  the  amounts  thereof ;  and  the 
only  question  as  to  the  mode  of  stating  the  account  current  between  the 
parties,  was,  whether  the  said  J.  L.  &  S.  Joseph  &  Co.  should  be 
credited  with  the  amounts  of  bills  di'awn  on  them  by  J.  C.  Levj^,  accep- 
ted by  them,  and  dishonored  at  maturity ;  and  the  amounts  of  the  pro- 
tested bills  and  notes  discounted  in  Charleston,  with  the  endorsement  of 
J.  C.  Levy,  and  unpaid  at  maturity.  It  was  further  contended  on  the 
part  of  the  plaintiffs,  that  J.  C.  Levy,  in  his  transactions  with  J.  L.  & 
S.  Joseph  &  Co.,  acted  only  in  the  capacity  of  an  agent ;  and  to  show 
this,  several  letters  from  J.  C.  Levy  to  the  Bank  of  the  State,  were  read 
in  evidence.  The  first  letter,  of  April  7th,  1837,  contains  this  clause: 
"  I  yet  hope  that  having  acted  virtually  as  their  agent,  always  depending 
on  the  wealth  of  that  house,  that  in  good  faith,  some  discrimination  may 
eventually  be  made  by  them  to  protect  the  drafts  drawn  by  me,  for  which 
full  remittance  was  always  made,  previously,  or  on  the  day  they  were 
drawn,  up  to  the  last  hour,  all  of  which  was  done  for  a  commission  that 
looked  to  the  labor  only,  without  reference  to  risk."  In  the  letter  of 
June,  1837,  he  says,  "for  a  very  small  commission,  I  have  *incur-  r^^^o- 
red  the  whole  of  my  liabilities;  and  have  never  participated  in  L '  *^^ 
any  gain,  or  expected  profits  from  the  heavy  operations  that  passed 
through  my  hands." 

The  presiding  judge  was  of  opinion  that  the  garnishee  could  not  be 


286  CHARLESTON,  FEBRUARY,  1840.      APP.  VOL.  I.       [*435 

considered  as  a  creditor  in  possession,  in  regard  to  the  bills  accepted 
and  protested  for  non-payment,  inasmucli  as  he  bad  in  fact  paid  nothing 
on  them  himself.  That  until  such  payment,  the  Josephs  &  Co.,  could 
not  be  said  to  be  indebted  to  the  garnishee,  in  the  meaning  of  the  attach- 
ment Act.  In  regard  to  the  unaccepted  bills,  he  thought  it  might  be 
held  otherwise.  Under  these  instructions  of  the  Court,  the  jury  found 
that  the  garnishee  was  a  creditor  for  the  amount  of  the  unaccepted  bills, 
but  not  for  the  bills  protested  for  non-payment.  The  finding  of  the  jury 
is  in  these  words  :  "  We  find  that  the  garnishee  is  a  creditor  in  posses- 
sion, to  the  amount  of  six  thousand  and  sixty-six  dollars  and  seventy- 
seven  cents,  and  that  the  residue  of  the  funds  specified  in  his  return, 
were  the  property  of  the  absent  debtors,  at  the  time  when  the  attachments 
were  levied." 

The  a-arnisbee  moves  for  a  new  trial,  on  the  following  grounds : 

1.  That  his  Honor  erred  in  the  opinion  expressed  by  him  to  the  jury,  that 
the  defendant,  in  the  transactions  between  himself  and  J.  L.  &  S.  Joseph  & 
Co.  acted  only  as  their  agent ;  and  that  whether  he  acted  in  that  capacity  or 
not,  he  was  not  entitled,  under  the  attachment  laio,  to  retain  the  funds  in 
question  as  creditor  in  possession,  beyond  the  amount  of  his  unaccepted  bills, 
drawn  by  him  on  the  said  J.  L.  &  S.  Joseph  &  Co. 

2.  That  his  Honor  erred  in  his  charge  to  the  jury,  when  he  stated  that  the 
defendant  could  not  recover  against  J.  L.  &  S.  Joseph  &  Co.  on  the  account 
stated  by  him,  beckuse  the  said  J.  L.  &  S.  Joseph  &  Co,  had  accepted  the 
domestic  bills  drawn  by  the  defendant,  which  were  dishonored  at  maturity ; 
and  that  the  defendant  could  maintain  no  action  against  the  said  J.  L.  &  S. 
Joseph  &  Co.  on  the  said  stated  account,  until  he  paid  the  said  domestic  bills 
accepted  as  aforesaid. 

3.  That  the  verdict  of  the  jury  was  contrary  to  law  and  evidence,  in  this,  that 
as  it  was  proved  that  the  defendant  was  responsible  for  a  large  amount  of 
domestic  bills  drawn  by  him  on  the  said  J.  L.  k  iS.  Joseph  &  Co.  accepted  by 
them,  aud  dishonored  at  maturity,  his  Honor  should  have  charged  the  jury, 
and  the  jury  find  accordingly,  tliat  the  defendant  had  a  lien  on  the  fund 
attached,  to  indemnify  him  for  his  responsibility. 

4.  That  a  banker  has  a  general  lien  on  funds  in  his  hands,  to  secure  him  for 
his  advances  or  liabilities  for  the  absent  debtor,  which  cannot  be  defeated  by 
an  attachment. 

5.  That  a  factor  or  agent  has  the  same  lien,  to  the  same  extent  as  a  banker. 
*4.^f  1      *^"  '^'^^^  ^  ^''^'^  "^'^  funds,  to  secure  for  responsibilities,  cannot  be  de- 

■l  foated  by  an  attachment. 
7.  That  the  verdict  of  the  jury  was,  in  other  respects,  contrary  to  law  and 
evidence. 

Appeal  determined  at  Charleston,  February,  1840. 

Curia,  per  Gantt,  J.  Two  principal  questions  arise  in  this^case. 
The  first  is,  whether,  by  the  general  law,  the  garnishee,  as  a  creditor  in 
possession,  lias  a  right  to  retain  the  securities  in  his  hands  for  the  general 
balance  of  his  account  against  the  Josephs  &  Co.  ?     Aud  if  so, 

2.  lias  the  attachment  Act  deprived  him  of  that  right  ? 

The  garnishee,  in  the  argument  in  these  cases,  has  been  designated  by 
various  appellations,  such  as  banker,  bill  broker,  factor  and  agent. 
Judging,  however  from  the  nature  of  the  transactions  which  he  carried  on 
for  the  Josei)]is  &  Co.,  the  most  appropriate  designation  of  the  character 
in  which  he  acted,  would  be  that  of  bill  broker.  Whatever  the  name 
may  be,  by  which  he  ought  to  be  distinguished,  I  feel  very  confident 


*436]  BANK   VS.    LEVY.  287 

that  he  was  of  that  class  of  persons  privileged  by  the  common  law  and 
the  usages  of  trade,  to  retain  the  securities  in  his  hands  as  creditor  in 
possession,  on  account  of  the  responsibilities  which  he  had  brought  upon 
himself  in  the  direct  line  of  his  agency  for  the  Josephs  &  Co.,  for  whom  he 
acted. 

Whitaker  in  his  treatise  on  Liens,  p.  35,  says,  that  bankers  have  a  lien 
on  all  paper  securities  in  their  possession,  for  the  general  balance  of  their 
accounts.  And  at  page  89,  he  reiterates  the  same  position,  with  this 
addition,  "not  only  for  debts  accruing  on  the  particular  account  for 
which  the  securities  were  deposited,  but  also,  fur  a  general  balance  due 
to  them  on  other  accounts  from  the  same  employer." 

Selwyn,  whom  I  esteem  as  amongst  the  most  accurate  of  authors,  in 
treating  of  the  defence  to  the  action  of  trover,  says,  "  The  most  usual 
defence  to  this  action  is,  that  the  defendant  has  a  lien  on  the  goods,  or  a 
right  to  detain  them."  And  then  proceeds  to  inquire  under  what  cir- 
cumstances a  party  ruay  insist  on  this  defence.  Among  a  great  variety 
of  persons  who  are  entitled  to  a  general  lien,  in  respect  of  a  general 
balance  of  account,  in  speaking  of  bankers,  he  says,  "  So  where  a  banker 
has  advanced  money  to  a  customer,  he  has  a  lien  upon  all  the  securities 
which  come  into  his  hands,  belonging  to  that  person,  for  the  amount  of 
his  general  balance ;  unless  there  be  evidence  to  show  that  he  received 
any  particular  security  under  special  circumstances,  which  would  take  it 
out  of  the  general  rule."  And  he  refers  to  the  case  of  Davis  vs.  Bow- 
sJier,  5  Term  Rep.  488,  sec.  2 ;  Selwyn,  p.  1287,  1288. 

In  2  Livermore,  p.  34,  it  is  said,  "  The  law'  gives  to  the  agent  a 
qualified  right  over  the  property  of  his  principal,  in  his  possession,  to 
hold  it  until*  payment  is  made  of  what  he  is  entitled  to  receive."  r^to^ 
This  right  is  denominated  a  lien,  and  is  defined  to  be  "  a  right  in  ^  ' 
one  man,  to  retain  that  which  is  his  possession  belonging  to  another,  until 
certain  demands  of  him,  the  person  in  possession,  are  satisfied." 

In  the  case  of  Kruger  vs.  Wilcox,  reported  in  Ambler,  p.  252,  the 
following  is  the  marginal  note  of  the  case.  "A  factor  gains  a  lien  on 
goods  consigned  to  him  from  his  correspondent,  for  the  balance  of  tiis 
account,  as  well  as  for  the  duties,  &c.,  and  may  retain  for  such  balance  ; 
but  if  he  parts  with  the  possession  of  the  goods  to  the  owner,  he  loses 
the  lien  for  the  balance  of  accounts."  Lord  Hardwicke  says,  in  giving 
the  judgment  of  the  Court,  "This  is  a  case  of  bankruptcy,  in  which  this 
Court  always  inclines  to  equality;  yet,  if  any  person  has  a  specific  lien, 
or  a  special  property  in  goods,  which  is  clear  and  plain,  it  shall  be 
reserved  to  him,  notwithstanding  the  bankruptcy."  And  Livermore,  p. 
38,  that  "Since  this  case,  which  was  in  1755,  it  is  settled  that  a  factor 
has  a  lien  upon  goods  consigned  to  him,  as  well  for  his  general  balance, 
as  for  the  incidental  charges  attending  the  particular  goods  in  his  hands; 
and  that  it  is  in  favor  of  commerce,  for  the  convenience  of  trade,  and 
with  a  view  to  encourage  them  to  advance  money  upon  goods  in  their 
possession,  of  which  must  come  to  their  hands  as  factors,  that  their  right 
of  lien  has  been  allowed  and  so  much  favored ;  and  that  this  lien  upon 
the  goods  of  his  principal,  is  not  only  for  the  general  balance  of  his  ac- 
count and  for  his  advances,  but  also,  for  the  amount  of  any  sum  for 
which  he  may  have  become  security  for  his  principal."  To  show  that 
the  lien  extends  to  a  case  of  suretyship,  by  the  factor  or  agent  for  his 


288  CHAKLESTOX,  FEBRUART,  1840.      APP.  VOL.  I.       [*437 

principal,  the  case  of  Brinkwater  and  another,  assignees  of  Doivding, 
(a  bankrupt,)  against  Goodwin,  reported  in  Cowper,  250,  is  referred  to. 
I  have  examined,  the  case,  and  the  opinion  of  the  Court,  as  delivered  by 
Lord  Mansfield.  To  avoid  prolixity,  I  insert  only  the  principle  decided, 
which  is,  "that  a  factor  who  becomes  surety  for  his  principal,  has  a  lien 
on  the  goods  sold  by  him,  for  his  principal,  to-  the  amount  of  the  sum  for 
which  he  has  so  become  surety."' 

Paley  on  Agency,  (at  p.  109,)  says,  "It  is  now  fully  settled,  that  a 
factor  has  a  lien  upon  each  portion  of  goods  in  his  possession,  for  his 
general  balance,  as  well  as  for  charges  arising  upon  these  particular 
goods ;"  and  adds,  that  since  the  case  of  Kruger  vs.  Wilcox,  (which  I 
have  before  referred  to,)  it  has  never  been  controverted,  but  is  now 
received  as  a  known  principle  of  law,  too  clear  to  be  disputed ;  and  that 
this  lien  attaches,  not  only  upon  the  goods  in  specie,  but  upon  the  pro- 
ceeds and  securities  received  in  the  course  of  his  business ;  and  he  refers 
to  a  variety  of  authors  in  support  of  these  positions.  Cowper,  251  and 
225;  2d  East,  227;  3d  B.  &  P.  489;  and  Willes,  400.  If,  then,  the 
positions  adverted  to  be  correct,  no  doubt  it  follows,  undeniably,  that 
the  garnishee  in  the  cases  before  us,  as  the  agent  of  the  Josephs  &  Co., 
*1^81  ^^^  ^  qualified  right  of  *property  in  the  securities  of  the  Josephs 
-I  &  Co.  in  his  possession ;  and  there  is  nothing  in  the  circumstances 
of  these  cases  to  deprive  him  of  the  benefit  of  that  lien  which  the  law 
invests  him  with.  The  right  is  derived  to  the  garnishee  from  the  liabil- 
ities incurred,  in  virtue  of  his  agency  and  transaction  of  business  for  the 
Josephs  &  Co.,  and  which,  from  the  return  made  by  him  as  garnishee, 
exceeds,  very  far  exceeds,  the  amount  of  the  funds  of  which  he  had 
possession,  and  which  constitute  the  subject  matter  of  these  issues.  The 
garnishee  had  a  right,  as  creditor  in  possession,  to  retain  these  securities, 
until  the  liabilities  which  he  had  brought  upon  himself  by  his  agency  for 
the  Josephs  &  Co.  were  removed. 

To  the  credit  of  the  garnishee,  nothing  of  unfairness  in  the  various 
transactions  in  which  he  has  been  engaged  for  the  Josephs  &  Co.,  as 
their  agent,  is  either  imputable  or  imputed  to  him.  He  has,  indeed,  been 
charged  with  a  want  of  caution,  in  making  himself  responsible  for  the 
Josephs  &  Co.,  when  he  might  have  avoided  such  responsibilities  by 
aOixing  his  name  in  these  transactions  as  agent  merely.  On  this  head, 
there  arc  no  specific  proofs  adduced ;  the  presumption  is,  that  it  was 
required  of  him  to  act  in  the  premises  as  he  has  done.  And  the  general 
disappointment  produced  by  the  failure  of  the  Josephs  &  Co.,  may,  it  is 
to  be  lioped,  lead  to  more  caution  with  all  parties  in  future.  The  right 
of  the  garnishee,  as  creditor  in  possession,  being  thus  fully  recognized, 
we  are  to  enquire. 

Secondly,  whether,  by  the  terms  of  the  Attachment  Act,  the  right  has 
been  taken  away  from  him.  This  will  depend,  exclusively,  upon  the  con- 
struction to  be  given  to  the  seventh  clause  of  the  Act,  in  the  following 
words.  "But  if  the  person  or  persons  so  summoned,  shall  appear  at  the 
return  of  the  writ,  and  lay  claim  to  the  said  monevs,  goods,  chattels,  or 
other  things,  and,  upon  oath,  deny  the  same  to  belong  to  the  absent 
debtor,  or  that  he  hath  any  moneys,  goods,  chattels,  debts  or  books  of 
account  l)elonging  to  the  aljsent  debtor,  if  the  plaintiff  shall  rest  satisfied 
therewith,  then  the  said  attachment  shall  be  discharged ;  but  if  not,  then 


*438] 


BANK    Vfi.    LEVY.  289 


the  claimant  or  claimants,  or  person  or  persons,  so  summoned  as  afore- 
said, shall  be  put  to  plead  the  same,  and  the  matter  shall  be  tried  by  a 
jury  forthwith,  &c.  And  the  i)arty  that  shall  be  cast  in  the  same,  shall 
pay  to  the  i)revailing  party  such  reasonable  costs  and  charges  as  shall  be 
allowed  and  taxed,"  &c. 

This  clause  of  the  attachment  Act,  was  intended  to  advance,  not 
abridge  the  rights  of  the  garnishee.  His  claim  to  the  funds  in  his  hands, 
made  by  his  return,  is  conclusive,  unless  the  plaintiffs  can  show  th^t  there 
is  no  foundation,  in  fact  or  in  law,  for  the  claim.  This  cannot  be  done, 
for  the  lien  is  undeniable.  The  creditors  can  be  in  no  better  situation 
than  the  Josephs  &  Co.  Would  they  be  permitted  to  recover  in  trover, 
without  paying  the  liabilities  of  the  garnishee?  Uncpiestionably  not. 
The  clause  in  the  attachment  Act,  giving  to  a  creditor  in  possession  the 
right  to  *declare  for  his  debt,  was  not  intended  to  abridge  any  r^  .oq 
common  law  right  which  existed.  It  may  furnish,  in  many  L 
instances,  a  cumulative  remedy.  It  has  no  reference  to  the  garnishee's 
lien.  This  is  secured  to  him,  although  there  be  not  any  present  indebted- 
ness for  which  he  could  maintain  an  action.  It  stands  in  the  place  of  a 
remedy  by  action,  and  it  is  only  necessary  to  show,  by  the  relation  of 
confidence  between  the  parties,  the  garnishee  has  made  advances  or  in- 
curred liabilities,  for  which  the  funds  in  his  hands  may  be  necessary  as  an 
indemnity,  and  then  the  lien  attaches.  It  is  not  necessary  that  the 
insolvency  of  the  Josephs  should  be  shown ;  the  creditors  are  in  their 
place;  and  if  the  Josej^hs  could  not  recover  the  funds  without  paying  the 
liabilities  incurred  by  tlie  garnishee,  it  follows,  that  the  plaintiffs  cannot 
defeat  his  lien,  or  put  him  to  the  proof  of  an  actual  present  indebtedness. 

I  see  nothing  in  the  act  to  deprive  the  garnishee  of  his  lien  on  the 
securities  in  his  hands,  for  the  liabilities  incurred  as  the  agent  of  the 
Josei)hs  &  Co.,  and  the  jury,  under  the  charge  of  the  presiding  judge, 
having  by  their  verdict,  infringed  upon  the  garnishee's  rights,  a  new  trial 
should  be  granted. 

RicriARDSON,  O'Neall,  and  Butler,  JJ.,  concurred. 

Earle,  J.  I  am  satisfied  that  I  took  an  erroneous  view  of  the  attach- 
ment Act,  when  I  held,  below,  that  the  garnishee  could  not  retain  the 
property,  unless  he  was  a  creditor  entitled  to  bring  an  action.  I  have 
no  doubt  that  there  may  exist  a  lien  where  there  is  no  legal  debt ;  and 
such  a  lien  under  the  first  section  of  the  Act,  would  give  a  special 
property,  which  would  enable  the  garnishee  to  hold. 

I  think  too,  that  I  was  mistaken  in  supposing  that  the  garnishee,  here, 
puts  his  right  to  retain,  altogether  on  the  ground  of  being  a  creditor  in 
possession.  His  return  is  susceptible  of  a  ditferent  construction,  and  may 
well  sustain  his  claim,  if  that  be  founded  in  law. 

That  is  the  important  question;  and  although  I  agree  that  the  case 
ought  to  go  back  for  a  new  trial,  I  am  not  satisfied  to  lay  down  the  law 
as  broadly  as  the  court  has  resolved  to  do. 

Since  the  case  of  Kruger  vs.   Wilcox,  it  has  not  been  questioned  that 

a  factor  has  a  lien  for  a  general  balance;  and  later  cases  have  allowed 

such  lien  for  outstanding  liabilities.     This  general  proposition,  although 

broadly  laid  down    by  Paley,  Livermore,  and    Story,  in  their  several 

Vol,  1—20 


O90  CHARLESTON,  FEBRUARY,  1841.      APP.  VOL.  I.       [*439 

treatises,  is  derived  from  the  cases  of  Drinkicater  vs.  Goochcin,  (Cowper, 
251,)  and  Hammond  vs.  Bardaij,  (2  East.  257.)  They  are  the  cases 
cited  in  all  the  compilations  where  that  rule  is  laid  down.  And  I  think 
that  they  do  not  sustain  the  lien  of  the  garnishee  here.  Other  cases  have 
likewise  been  relied  on,  Pulfeney  vs.  Keymour,  (3  Esp.  N.  P.  Ca.  182;) 
King  vs.  Lee  et  ah,  (6  Pr.  E.  R.  269.)  Meeker  vs  Wilson,  (Mass. 
Rep.)  Ingersall  vs.  *Vanhokkerlin,  (7  Cowen  R.  270.)  some 
*440J  j;,jfj.]igi^  and  some  American,  to  establish  the  same  proposition.  But 
when  examined,  they  will  not  be  found  to  touch  the  point  made  in  this 
case.  They  are  all  cases  where  the  responsibility  has  been  incurred  on 
the  credit  of  the  particular  goods  on  which  the  lien  was  claimed.  They 
are  cases  of  acceptances  given  upon  consignments  made  or  promised  ; 
and  the  leading  case,  that  o'l  Drinkwater  vs.  Goodicin,  was  decided  by 
Lord  Mansfield,  on  the  ground  of  express  contract.  Hammond  vs. 
Barclay,  was  a  case  of  acceptance  given  upon  the  consignment  of  a  ship 
and  cargo  ;  so  w^as  Pulteney  vs.  Keymour.  And  the  obvious  distinc- 
tion between  all  that  class  of  cases,  and  this,  will  be  made  manifest  by 
the  marginal  note.  "If  a  broker  advances  money,  and  gives  his  accept- 
ances, on  the  credit  of  goods  lodged  in  his  hands,  the  owner  cannot 
demand  them  without  full  indemnity  "  So  in  The  King  vs.  Lee,  the 
point  decided  is,  that  a  factor  to  whom  goods  have  been  sent  for  sale, 
and  who  has  accepted  bills  of  exchangs,  drawn  on  him  by  his  principal, 
to  the  amount  of  their  value,  has  a  lien  upon  them.  An  accumulation  of 
authorities  to  establish  so  plain  a  proposition,  as  that  a  factor  has  a  lien 
for  a  general  balance,  and  that  an  attachment  will  not  overreach  an 
actual  lien  when  it  exists,  was  hardly  necessary.  Levy,  the  garnishee, 
does  not  stand  upon  that  footing  at  all.  And  the  question,  whether  he 
is  entitled  to  a  lien,  may  depend  on  facts  yet  to  be  ascertained.  Lien  or 
not,  it  is  true  is  a  question  of  law  ;  but  the  facts  out  of  which  it  may  be 
claimed,  are  for  the  jury.  Lord  Mansfield  said,  in  Green  et  al.  vs. 
Farmer  et  al.,  (4  Rurr.  2221,)  that  the  convenience  of  commerce  and 
natural  justice,  are  on  the  side  of  liens  ;  and  that  courts  lean  that  way, 
1.  AVhere  there  is  an  express  contract ;  2.  Where  it  is  implied  from  the 
usage  of  trade  ;  or  3.  From  the  manner  of  dealing  between  the  parties ; 
and  4.  AVhere  the  defendant  has  acted  as  factor.  There  is  nothing  in 
this  case  to  show  that  a  lien  arises  on  either  of  the  grounds  stated  by 
Lord  Mansfield.  There  was  no  contract,  and  no  usage  of  the  particular 
trade.  The  manner  of  dealing  between  the  parties,  leads  to  the  opposite 
conclusion  ;  and  whether  he  be  called  factor,  banker,  or  bill-broker,  he 
has  n<»  lien,  if  it  be  manifest  from  the  manner  of  dealing,  that  he  never 
looked  to  an  indemnity,  and  that  he  relied  on  the  personal  credit 
of  his  customers.  Mr.  Story,  in  his  well  digested  treatise  on  the  law  of 
Agency,  says,  that  "  no  lien  will  arise  where  there  is  an  express  agreement 
Ijclween  the  parties  not  to  insist  upon  it;  or  where  it  is  clear,  from  the 
whole  ■^transactiijn,  that  the  party  trusted  to  the  personal  credit  of  his 
dcl4<»r."  Such  is  the  language  of  Livermore,  and  Chancellor  Kent;  and 
such,  also,  is  the  i)ositive  language  of  Lord  Mansfield,  in  Green  vs. 
Farmer. 

The  whole  correspondence  between  the  Josephs  and  Levy,  and  the 
letters  from  Levy  to  the  Bank,  lend  very  strongly  to  show  that  he  never 


*440] 


MUNRO   VS.   LAURENS.  291 


looked  to  an  indemnity ;  that  he  relied  solely  on  the  wealth  and  personal 
credit  of  *the  Josephs.  Take  his  letter  to  the'  Bank,  of  the  7th  r^^  ii-i 
April,  and  can  anything  be  more  explicit.  "  I  yet  hope,  having  L 
acted  virtually  as  their  agent,  always  depending  on  the  wealth  of  that 
house,  that  in  good  faith,  some  discrimination  may  eventually  be  made." 
"  All  of  which  was  done  for  a  commission,  that  looked  to  the  laljor  only, 
without  reference  to  the  risk."  And  indeed  their  letter,  of  the  20th 
April,  in  which  they  say,  "  You  have  the  means  to  protect  yourself,  so 
far  as  the  paper  goes  which  is  in  your  hands  for  collection,"  seems  to 
exclude  the  notion,  that  either  they  or  he,  up  to  that  time,  had  any  view 
to  a  lien,  which  would  not  have  needed  their  authority  to  enforce. 

The  whole  of  his  liabilities  were  incurred  before  the  securities  came 
into  his  hands.  He,  therefore,  could  noff  have  looked  to  them  for  in- 
demnity, because  he  could  not  anticipate  that  he  would  receive  them.  It 
would  be  just  as  reasonable  to  allow  a  lien  to  every  endorser  or  security, 
who  obtains  accidental  possession  of  the  goods  of  his  principal.  How 
can  it  be  supposed  that  he  could  have  looked  to  a  lien  on  securities  for 
40  or  $50,000  yet  to  be  received,  when  incurring  liabilities  to  the  amount 
of  $400,000. 

I  cannot,  therefore,  unite  with  my  brethren  in  saying,  as  matter  of  law, 
that  Mr.  Levy  had  a  lien.  Whether  he  was  banker  or  bill-broker,  it 
seems  to  me  very  obvious  that  he  was  dealing  on  their  credit,  or  his  own. 
If  he  looked  to  theirs,  it  is  clear,  on  authority,  that  he  has  no  lien  ;  a 
fortiori,  if  he  dealt  upon  his  own,  he  can  claim  none. 

This,  however,  is  a  question  of  fact  which  ought  to  be  sent  to  the  jury 
with  suitable  instruction.     And  such  is  my  judgment. 

In  the  case  of  the  Bank  of  Charleston,  I  am  satisfied  that  the  letter  of 
the  Josephs,  of  20th  April,  1837,  which  was  anterior  to  the  attachment, 
constituted  a  valid  transfer  or  assignment  of  the  assets  claimed.  As 
garnishee,  he  had  a  right  to  claim  and  hold  under  that,  against  the 
attachment. 

See  Martin  vs.  Solomon,  10  Rich,  539  ;   6  Rich,  178,     An. 


*Martin  E.  Munro  vs.  Edward  R.  Laurens.  [*442 

The  rule  of  Court  («)  which  provides  that  a  plaintiff  who  does  not  proceed  to  trial 
on  the  fourth  call  of  his  cause,  or  obtain  a  continuance,  shall  be  nonsuited,  is 
not  only  within  the  power  of  the  Court,  but  is  expedient  and  proper,  and  ought 
to  be  enforced. 

In  such  case,  where  a  nonsuit  has  been  ordered,  or  the  cause  has  been  struck  off 
the  docket,  the  Cowt  will  not  set  aside  the  nonsuit,  or  restore  the  cause,  at  a 
subsequent  term,  on  the  affidavit  of  the  plaintiff,  that  he  was  misled  by  the 
Clerk's  order  for  judgment  by  default,  and  supposed  that  final  judgment  had 
been  obtained,  although  his  attorney  may  have  died  in  the  mean  time. 

Before  Earle,  J.,  at  Charleston,  May  Term,  1839, 
The  plaintiff,  several  years  ago,  brought  his  action  of  assumpsit,  and 
(«)  19th  Rule,     Mill  Company,  36. 


•>9'2  CHARLESTON,  FEBRUARY,  1841.      APP.  VOL.  I.       [*442 

on  flling  his  declaration,  as  the  defendant  had  entered  no  appearance, 
obtained  an  order  for  judgment  by  default,  and  the  cause  stood  on  the 
writ  of  inquiry  docket.  He  took  no  further  steps ;  and  at  May  Term, 
1S38,  the  cause  having  remained  five  terms  on  the  docket,  his  Honor,  the 
presiding  Judge,  ordered  it  to  be  struck  off.  At  May  Term,  1839,  the 
plaintiff'nioved  to  reinstate  the  cause  on  the  docket,  and  to  have  leave  to 
execute  his  writ  of  inquiry,  on  an  affidavit,  stating  that  the  late  Mr.  Cross 
was  his  attorney,  who  died  in  1836  ;  that  after  his  death,  the  plaintiff,  on 
application  to  'his  administrator,  obtained  the  record,  with  an  order  for 
judgment  endorsed  thereon,  from  which  he  supposed  final  judgment  had 
been  obtained,  and  therefore  retained  it  in  his  hands,  without  further 
inquiry,  until  he  made  an  assignment  for  the  benefit  of  his  creditors. 
The  motion  to  reinstate  the  cause  was  refused ;  from  which  decision  the 
plaintiff  appealed,  and  renewed  his  motion  in  the  Court  of  Appeals. 

Appeal  determined  at  Charleston,  February,  1840. 

Curia,  per  Earle,  J.  In  the  argument,  a  wish  was  expressed  that 
the  Court  would  lay  down  some  rule  on  this  subject.  It  is  only  necessary 
for  the  Court  to  say,  that  it  will  adhere  to  the  rule  already  adopted  ;  for 
the  plaintiff"  can  take  nothing  by  his  motion,  unless  the  Court  departs 
from  its  own  rule,  and  makes  his  case  an  exception.  It  is  but  reasonable 
that  a  plaintiff,  who  brings  a  defendant  into  Court,  to  answer  to  an  action, 
should  proceed  to  the  trial  of  it,  with  all  convenient  dispatch  ;  and  this  is 
required  by  positive  law.  To  insure  this  end,  the  Court,  in  the  exercise 
of  the  powers  vested  in  it,  has  adopted  the  following  rule  :  "  If  any  issue, 
writ  of  inquiry,  or  summary  process  docketed,  shall  be  called  four  Courts, 
and  not  tried,  the  plaintiff  shall  be  called,  and  if  he  does  not  immediately 
go  to  trial,  he  shall  be  nonsuited,  unless  it  shall  appear  that  it  had  been 
continued  at  the  defendant's  motion,  or  other  satisfactory  cause  shall  be 
*i4^1  ^^lo^^'f^  to  the  Court,  on  *oath,  to  prove  it  was  not  postponed  from 
-^  the  plaintiff's  neglect,  or  unless  the  plaintiff',  at  such  fourth  call, 
obtain  a  further  continuance."  The  plaintiff's  cause  had  remained  on  the 
docket,  and  had  been  called  five  successive  terms,  and  at  the  fifth  call 
was  struck  off.  The  defendant  having  entered  no  appearance,  could 
make  no  formal  motion  for  a  nonsuit;  but  he  was,  nevertheless,  entitled 
to  the  benefit  of  a  rule,  made,  in  part,  for  his  protection  from  vexatious 
delay ;  although  he  had  not  thought  fit  to  plead,  yet  he  had  a  right  to  be 
heard  on  a  writ  of  inquiry,  so  far,  at  least,  as  to  see  that  the  plaintiff 
proved  his  demand,  and  did  not  recover  too  much.  It  was  fair  to  pre- 
.sumc  that  he  was  therein  Court  for  that  purpose;  not  that  he  was  a 
defauUing  debtor,  benefited  by  the  delay,  when  the  plaintiff,  after  five 
terms,  failed  to  bring  forward  his  proof.  The  rule  is  peremptory,  and  it 
is  perhaps  to  be  regretted  that  it  is  not  more  rigidly  enforced. 

The  Court  perceives  nothing  in  the  affidavit,  to  induce  it  to  restore  the 
cause.  It  may  be  questioned  whether  the  Court  has  the  power.  The 
order  was  not  appealed  from.  The  defendant  w^as  entitled  to  an  order 
for  nonsuit,  or  of  non  liroa.  as  no  cause  was  shown  for  further  continu- 
ance ;  and  under  that  state  of  the  case,  I  should  doubt  the  power  of  the 
Court  to  restore  it.     If  it  had,  the  cause   shown  is  insufficient.     It 


*443] 


ALSTON  VS.  m'dowall  et  al.  293 


amounts  only  to  this,  that  the  phxintiff's  business  was  neglected,  perhaps 
by  his  attorney  while  alive,  certainly  by  himself  since. 
The  decision  below  is  affirmed. 

Gantt,  Richardson,  O'Neall  and  Butler,  JJ.,  concurred;  Evans, 
J.,  absent. 

Phillips,  for  the  motion.     Bailey,  contrn. 

See  1  Bay,  31.     An. 


*WiLLiAM  Alston  vs.  Thomas  McDowall.  [*444 

The  Same  vs.  William  0.  Clarke. (o) 

Although  an  actual  possession  of  twenty  years  will  raise  the-  presumption  of  a 
grant,  yet,  where  the  i^laintifF  made  a  survey  of  many  contiguous  tracts,  with 
the  intermediate  and  dividing  boundaries  distinctly  represented  on  the  plat, 
doubted  whether  a  possession  of  twenty  years  on  one  only  of  the  several  tracts 
would  raise  the  presumption  of  a  grant  to  all  the  lands  included  within  the 
survey. 

In  such  case  a  plaintiff  cannot  rely  on  a  possession  of  twenty  years  on  one  of  the 
tracts,  to  raise  the  presumption  of  a  grant  to  himself  of  all  the  lands  contained 
in  the  survey,  when  he  produces  original  grants  to  othei'S  for  several  of  the 
tracts,  (being  those  in  dispute,)  of  a  date  anterior  to  the  commencement  of  his 
possession. 

The  defendants  being  in  possession  of  these,  and  the  plaintiff  having  produced  the 
original  grants,  he  must  show  that  he  has  acquired  the  title  of  the  grantees  by 
conveyance,  by  adverse  possession,  or  such  possession,  with  other  proof,  as 
would  raise  the  presumption  of  a  conveyance. 

An  entry  for  the  purjiose  of  survey,  will  not  create  the  bar  of  the  statute  ;  nor  will 
such  entry,  together  with  the  possession  of  the  grant,  without  other  proof,  raise 
the  presumption  of  a  conveyance  from  the  grantees. 

The  defendants  being  in  actual  possession  of  the  tracts  so  granted,  of  which  the 
plaintiff  never  had  possession  ;  held,  that  the  plaintiff'  could  not  recover  without 
proof  of  title. 

Before  Earle,  J.,  at  Horry,  Fall  Term,  1838. 

These  were  actions  of  trespass  to  try  titles  to  several  tracts  of  land. 

Tlie  plaintiff  gave  in  evidence,  an  original  grant  to  John  Alston,  for  two  hun- 
dred and  forty-three  acres,  dated  the  4th  June,  1735  ;  a  grant  to  Daniel  Dwight 
for  one  thousand  and  eighty-five  acres,  dated  3d  September,  1735  ;  and  a 
grant  to  Andrew  Broughton  for  two  hundred  and  twenty-seven  acres,  of  the  same 
date.  These  tracts  were  identified  by  a  surveyor,  and  a  trespass  was  proved  by 
McDowall  on  the  two  former  tracts,  and  by  Clarke  on  the  latter. 

The  plaintiff  then  offered  in  evidence  a  plat  made  by  William  Hemmingway,  a 
surveyor,  on  25th  August,  175)7,  of  seven  contiguous  tracts  of  land,  containing 
three  thousand  five  hundred  and  forty-one  acres,  as  the  property  of  the  plaintiff, 
with  these  remarks  and  references  in  the  margin.  "A.  Granted  to  Thomas  Brown, 
November  29,  1735,  for  one  hundred  and  twenty-nine  acres.  B.  Granted  to  John 
Oldham,  June  2lj,  1736,  for  three  hundred  acres.  C.  Granted  to  William  Alston 
and  Thomas  Brown,  November  28,  1735,  and  June  26,  1736,  for  six  hundred  and 
thirty  acres.  D.  Granted  to  Andrew  Broughton,  September  3, 1735,  for  two  hun- 
dred and  twenty-seven  acres.  E.  (J ranted  to  ReVj.  Daniel  Dwight,  September  3, 
1735,  for  one  thousand  and  eighty-five  acres.     F.  Granted  to  John  Alston,  June 

(a)  See  Alston  vs.  Collins,  2  Sp.  450.     An. 


294  CHARLESTOX,  FEBRUARY,  1840.      APP.  VOL.  I.       [*444: 

4.  1735,  for  two  hundred  and  forty-three  acres.  G.  Is  four  hundred  and  sixteen 
acres  surveyed  for  Col.  Alston,  August  25,  1797;"  with  this  further  certificate  in 
the  margin.  "A  plan  of  three  thousand  five  hundred  and  forty-one  acres  of  land, 
the  property  of  Col.  William  Alston,  by  an  actual  survey  made  August  25,  1797, 
by  William  Hemmingway,  surveyor."     See  annexed  plat. 

^'    .         *A  plan  of  three  thousand  five  hundred  and  forty-one  acres  of  land,  the 
-'  property  of  Col.  William  Alston,   by  an  actual  survey,  made  August  25, 
1797,  by  William  Hemmingway,  surveyor. 

A.  Granted  to  Thomas  Brown,  November  29,  1735,  for  one  hundred  and  twen- 
ty-nine acres. 

B.  Granted  to  John  Oldham,  June  26,  1736,  for  three  hundred  acres. 

C.  Granted  to  William  Alston  and  Thomas  Brown,  November  28,  1735,  and 
June  26,  1736,  for  six  hundred  and  thirty  acres. 

D.  Granted  to  Andrew  Broughton,  September  3,  1735,  for  two  hundred  and 
twenty-seven  acres. 

E.  Granted  to  Rev.  Daniel  Dwight,  September  3,  1735,  for  one  thousand  and 
eighty-five  acres. 

F.  Granted  to  John  Alston,  June  4,  1735,  for  two  hundred  and  forty-three  acres. 

G.  Is  four  hundred  and  sixteen  acres  surveyed  for  Col.  Alston,  August  25,  1797. 


It  was  proved  tliat  James  Newton  occupied  a  house  at  the  ferry,  with  a  small 
field  on  tlje  tract  C;  tliat  lie  was  put  in  possession  l)vtlie  plaintiff;  with  autliority 
aud  directions  to  look  after  other  lauds  of  the  plaintiff  in  the  neighborhood,  and 


*445]  ALSTON  VS.  m'dowall  et  al.  295 

to  see  that  no  trespasses  were  committed  iipon*tliem  ;  that  this  possession  p^. ,  , 
continued,  with  the  exception  of  short  intervals,  when  others  took  his  place,  '- 
for  upwards  of  twenty  years  before  suit  brought.  It  was  further  proved,  that  the 
plaintiff  was  in  the  habit  of  cutting  timber  on  the  ferry  tract,  for  the  us(;  of  his 
plantations  ;  but  no  actual  occupation  or  possession  was  proved  in  either  of  the 
three  tracts  granted  to  John  Alston,  Dwight  and  Broughton,  and  no  act  of  owner- 
ship, except  that  of  making  the  survey  in  1797. 

The  ]tlaintifi'  offered  in  evidence  no  conveyance  or  other  derivation  of  title,  from 
either  of  the  grantees  of  those  tracts,  wliich  alone  were  in  dispute,  and  relied  on 
the  general  plat,  with  the  possession  of  twenty  years  at  the  ferry  as  suificient. 

The  Circuit  Court,  on  a  motion  for  a  nonsuit,  was  of  opinion  that  this 
was  not  enoug-h  to  confer  title  to  the  several  tracts  in  dispute,  the  original 
grants  of  which  were  produced  ;  and  the  plaintiff  was  nonsuited. 

A  motion  was  now  made  to  set  aside  the  nonsuit,  and  for  a  new  trial. 
It  was  first  argued  at  February  Term,  1839,  when  it  stood  over,  and  was 
ordered  to  be  re-argued  at  February  Term,  18-40,  when  the  judgment  of 
the  Court  was  delivered  by 

Earle,  J.  The  claim  of  the  plaintiff  to  recover  in  these  actions, 
depends  on  principles  which  I  had  supposed  to  be  well  settled.  There 
can  be  no  doubt  that  an  actual  possession  of  twenty  years,  will  authorize 
a  jury  to  presume  a  grant,  or  in  some  cases  a  conveyance,  (o)  But  the 
precise  point  which  arises  here,  does  not  seem  to  have  been  made  before. 
The  ])laintiff  produces  a  plat  made  at  his  instance,  by  a  public  surveyor, 
in  1797.  This  is  not  a  survey  of  a  single  entire  tract,  but  of  seven  con- 
tiguous tracts,  the  intermediate  boundaries  of  which  are  as  distinctly 
marked  out  as  they  could  have  been  in  a  separate  survey  of  each,  with  a 
statement  in  the  margin,  that  the  different  tracts  have,  in  fact,  been 
granted  to  different  persons.  Whether  such  a  survey,  with  an  actual 
possession  on  one  only,  for  twenty  years,  would  authorize  the  presump- 
tion of  a  grant  to  the  plaintiff  of  all  the  land  contained  within  the  seven 
tracts,  may  well  be  doubted.  But  such  a  presumption  cannot  arise  in 
direct  opposition  to  the  proof;  the  plaintiff  cannot  set  up  a  grant  to 
himself,  to  the  whole  of  the  lands  contained  in  the  survey,  from  a  posses- 
sion beginning  in  1797,  when  he  produces  an  original  grant  to  another, 
for  part  of  the  lands,  in  1735.  Presumption,  in  aid  of  title,  where  there 
has  been  a  long  possession,  stands  in  the  place  of  proof;  but  it  cannot 
supercede  or  overthrow  it.  And  when  the  plaintiff  has  produced  a  grant 
to  John  Alston,  to  Daniel  Dwight,  and  to  Andrew  Broughton,  he  must 
show  that  he  has  acquired  their  title.  An  adverse  possession  would  have 
enabled  him  to  do  this ;  or  such  a  possession,  with  other  proof,  as  would 
authorize  the  presumption  of  a  conveyance.  Nothing  short  of  an  actual 
possession  would  answer  either  of  these  *ends.  It  must  have  been  r^  i  <  ^ 
such  a  ])Ossession  as  would  enable  the  real  owner  to  sue.  It  is  '- 
only  upon  his  forbearance  to  sue,  that  the  title  is  barred  by  the  statute, 
in  one  case,  or  that  the  presura{)tion  of  a  conveyance  arises  in  the  other.(&) 
The  possession,  therefore,  should  have  been  actual,  open  and  notorious ; 
an  occupation  of  the  very  soil,  the  title  to  which  is  alleged  to  be  barred, 
or  a  conveyance  of  which  is  intended  to  be  presumed.  A  mere  entry  for 
the  purpose  of  survey  is  no  such  occujiation.  It  might  be  regarded  as  a 
trespass,  which  would  sustain  an  action;  but  it  is  not  a  continuous  pos- 
(rt)  11  Eich.  425.     An.  {h)  Supra,  354.     An. 


296  CHARLESTON,  FEBRUARY,  1840.      APP.  VOL.  I.       [*447 

session,  which  would  confer  title.  If  the  plaintiff  had  actually  obtained 
a  deed  from  John  Alston,  or  from  Dwight,  or  Broughton,  such  au  entry 
and  survey,  with  the  possession  at  the  ferry,  might  perhaps  enable  him  to 
give  it  in  "evidence  without  proof,  if  thirty  years  old.  But  surely  it  would 
not  dispense  with  the  deed  altogether. 

A  constructive  possession  follows  the  title,  where  there  is  no  actual 
possession.  It  cannot  be  allowed  to  prevail  against  the  title.  The 
])laintiff  had  no  actual  possession  of  the  tracts  granted  to  John  Alston, 
Dwight  and  Broughton.  If  they  had  the  title,  the  constructive  possession 
was  in  them;  and  if  the  defendants  had  pi'oduced  the  grants  to  them, 
they  must  have  defeated  the  plaintiff's  actions.  It  would  seem  strange  to 
say,  that  a  plaintift"  may  recover  on  proof,  which,  if  produced  by  the 
defendant,  would  prevent  him  from  recovering.  This,  it  should  be  borne 
in  mind,  is  not  a  case  of  an  entry  by  force,  and  of  actual  eviction.  The 
defendants  did  not  enter  upon  the  plaintiif,  who  had  no  such  possession 
as  would  enable  him  to  maintain  trespass  quare  clausiim  freyit. 
Pearson  vs.  Danshy  &  Nelson,  (2  Hill,  466.) 

By  the  production  of  the  grants  to  John  Alston,  Dwight  and  Broughton, 
he  separated  these  tracts  from  the  other  lands  in  the  survey,  both  in 
regard  to  title  and  possession.  The  defendants  entered  upon  them  as 
wild  uncultivated  lands,  and  were  in  possession.  Since  the  ease  of 
Faysoux  vs.  Prather,  (1  N.  &  M'C,  296,)  it  is  well  settled  that  a 
defendant  in  trespass  to  try  titles,  may  defeat  the  plaintiff  by  showing 
title  in  a  stranger.  And  it  would  be  a  total  alteration  of  the  law  to  say, 
that  in  such  case  a  plaintiff  may  sustain  an  action  by  showing  a  better 
title  than  the  defendant.  He  who  has  actual  possession,  not  obtained  by 
a  tortious  eviction,  is  to  be  regarded  as  the  owner  until  a  perfeci  title  is 
proved.  Whether  the  possession  of  the  defendants  was  otherwise  right- 
ful, and  under  good  title,  it  seems  immaterial  to  inquire,  as  the  plaintiff 
produced  no  other  evidence  of  title  than  the  possession  of  the  grants,  and 
a  .surveyor's  plat,  made  at  his  instance.  That  would  as  well  authorize 
the  presumption  of  a  descent  cast,  as  of  a  conveyance.  It  is  true,  as 
stated  by  Mr.  Starkie,  "  A  jury  may  find  in  all  cases,  a  grant,  conveyance 
or  release,  or  such  cogent  and  legal,  though  circumstantial,  evidence,  as  is 
sufficient  to  convince  their  minds  that  a  grant  or  conveyance,  essential  to 
*4481  ''''^  transfer,  according  to  the  *nature  of  the  property,  has  been 
-•  actually  executed."  (.3  Evid.  1225.)  But  here  there  is  nothing 
iu  fact,  to  lay  the  foundation  of  such  a  presumption.  The  law  presumes, 
from  a  long  possession,  that  what  ought  to  have  been  done  has  been  done. 
Arthur  vs.  Arthur,  (2  N.  &  M'C,  96.) 

But  there  is  no  proof  that  John  Alston,  Dwight  or  Broughton,  ought 
to  liavc  conveyed  to  the  plaintiff;  and  no  circumstance  from  which  an 
inference  can  be  drawn  that  they  did  convey  ;  except  the  possession  of 
liie  grants  and  the  survey.  And  I  apprehend,  no  case  can  be  found,  in 
which  a  conveyance  has  been  presumed  from  such  facts,  where  there 
has  been  no  actual  possession  of  the  land  claimed  to  have  been  conveyed. 

A  niiijority  of  the  Court  is  of  opinion  that  the  nonsuit  was  properly 
ordered. 

Gantt  iind  ]ticnAKD«ON,  J  J.,  concurred. 

O'Neall,  J.     In  these  cases,  I  differ  from  my  brethren  who  sustain 


*448]  YOUNG   vs.   WATSON.  297 

the  nonsuits.  The  plaintiff's  plat,  made  by  Ilemmingway,  Auj^ust,  '97, 
included  the  land  on  which  the  defendants  have  trespassed.  This 
unquestionably  defined  the  extent  of  the  plaintitl's  claim.  His  possession 
within  it  had  constructive  effect  to  the  extent  against  every  one,  except 
the  grants  elder  than  that  survey,  and  lying  within  it.  As  against  them 
it  would  not  create  the  bar  of  the  statute.  But  the  bar  of  the  statute, 
and  iriere  presumptions  in  fact,  are  very  dilferent  things.  His  possession 
within  tliat  survey,  including  grants  to  other  persons,  for  more  than 
twenty  years,  and  his  adduction  in  evidence  of  those  very  grants,  were 
circumstances  from  which  a  jury  might  have  found  the  execution  of  the 
intermediate  conveyances. 

But  I  do  not  rest  the  case  upon  this  view.  For  the  plaintiff's  posses- 
sion under  color  of  title,  was  enough  to  enable  him  to  recover  for  a 
trespass  committed  within  its  limits  by  any  one  who  had  no  title.  Indeed, 
his  possession  put  the  defendants  to  the  proof  of  title.  For  they  entered 
upon  him  ;  and  if  he  could  have  maintained  trespass  quare  clausum 
frecjit  upon  this  proof,  then  it  is,  I  think,  equally  clear,  it  was  sufficient 
evidence  of  title  to  entitle  him  to  go  to  the  jury  for  the  land  and  his 
damages.  Possession  under  Hemmingway's  plat  at  any  point,  was  con- 
structively a  possession  of  all  the  land  within  it;  and  an  entry  by  the 
defendants  upon  any  portion  of  that  survey,  was  a  trespass  upon  the  close 
of  the  plaintiff,  and  for  this  disturbance  of  his  possession,  he  is  entitled  to 
damages,  unless  the  defendants  could  justify.  Bull,  X.  P.,  103 ;  Burn, 
291  ;   2  Saund.;  110;  2  J.  K,  22  ;   10  J.  R.,  338. 

This  goes  upon  the  legal  notion  that  he  who  is  in  the  possession  of 
land,  is  the  rightful  owner.     If  this  be  true  in  one  form  of  action,  it  must 
*be  so  in  all.     Reason  and  propriety  dictate  that  this  should  be  r:):- jq 
the  conclusion  of  our  Courts.    He  who  invades  a  possession  ought  •- 
to  show  his  right. 

I  think,  therefore,  the  motion  to  set  aside  the  nonsuits  ought  to  be 
granted. 

See  Binder  vs.  Bonbon,  9  Rich.  26;  AlcCoIman  vs.  Wilkes,  3  Strob.  480.     .-In. 


CuARLES  D.  Young  rs.  Alexander  Watson. 

In  trespass  to  try  titles,  where  the  defendant  has  not  acqiTired  his  possession  by  a 
tortious  eviction,  or  actual  disseizin,  the  jikiintiff  must  make  out  a  perfect  title 
in  himself. 

It  is  necessary  to  show  that  the  land  has  been  granted,  either  by  the  production 
of  the  grant,  or  by  proof  of  such  possession  in  the  plaintiif,  or  some  one  from 
whom  he  derives  title,  as  will  authorize  the  presumption  of  a  grant. 

A  possession  of  sixteen  years,  which  terminated  in  1791,  insntficient  for  that 
purpose  ;  and  the  plaintiff  producing  no  other  title,  was  nonsuited. 

Before  Earle,  J.,  at  Charleston,  May  Term,   1839. 

Trespass  to  try  titles  to  certain  lands  on  Acheson's  Island  and  Wa- 
shavv  Creek,  on  Santee.  The  plaintiff  claimed  as  heir  at  law  of  his 
father,  and  by  descent  from  his  grandfather,  Charles  Young,  who  died 


298  CHAELESTOX,  FEBRUARY,  1840.      APP.  VOL.  I.       [*449 

abaut  1S03.  The  title  of  Charles  Yonng:,  the  grandfather,  was  fieri ved 
from  Alexander  Inglis,  and  to  sustain  it,  office  copies  of  the  following 
deeds,  under  proof,"  deemed  sufficient  to  entitle  them  to  be  read,  were 
produced  and  read  in  evidence. 

1.  A  deed  of  conveyance,  dated  the  8tli  of  November,  1798,  from  Alexander 
Inglis  and  ^Yilliam  Ma'rshall,  Executors  of  Alexander  Inglis,  deceased,  to  George 
Wagner,  for  the  lands  described  in  the  declaration.  The  deed  recited  certain 
proceedings  in  Chancery,  by  the  creditors  of  Inglis,  to  subject  the  real  estate  to 
the  paj-nient  of  debts,  on  which  a  decree  was  pronounced,  directing  a  sale  of  the 
lands  by  the  executors,  and  that  they  should  make  titles  to  the  purchaser;  and 
that  the  heir  at  law,  and  the  devisees,  should  join  in  and  confirm  the  titles  within 
six  mouths  after  attaining  the  age  of  twenty-one  years,  or  show  cause  to  the 
contrary.  The  proceedings  in  Chancery  were  not  in  evidence,  and  there  was  no 
deed  of  confirmation  by  the  heir  or  devisee. 

*2.  A  deed  of  conveyance  from  George  Wagner  to  Charles  Young,  dated 
■*     J  20th  April,  1709,  for  the  same  lands. 

It  was  proved  by  Mrs.  Mary  Brown,  that  Inglis  owned  a  plantation  on  South 
Santee,  called  Washaw,  but  whether  it  embraced  any  land  on  Acheson's  Island, 
she  did  not  know.  She  understood  that  Mr.  Wagner  bought  part  of  the  plantation 
and  Mrs.  Horry  a  part.  Mr.  Inglis  acquired  his  lands  on  Santee  by  marriage. 
He  took  possession  of  his  wife's  lands  at  the  death  of  her  father,  in  1775,  and  had 
possession  of  them  and  cultivated  them  until  his  death,  in  1791.  She  did  not 
know  that  the  land  held  by  Inglis,  was  the  same  that  is  now  in  dispute. 

The  plaintiff  relied  ©n  this  proof  of  possession  by  Inglis,  as  sufficient 
to  constitute  title  in  him;  or  at  least,  as  sufficient  to  enable  him  to  re- 
cover in  this  action  against  the  defendant,  who  showed  no  title.  Ou  a 
motion  for  a  nonsuit,  the  Circuit  Court  was  of  a  ditfereat  opinion  ;  with- 
out regard  to  the  defect  in  the  plaintiff's  title,  in  not  producing  the 
proceedinjrs  in  chancery,  under  which  the  sale  w^as  made  by  the  executors 
of  Inglis,  and  for  want  of  the  deed  of  confirmation  by  the  heir  and 
devisees. 

Nonsuit  ordered  ;  which  it  was  now  moved  to  set  aside. 

Appeal  determined  at  Charleston,  February  1840. 

Cur  in,  per  Earle,  J.  What  has  been  said  in  Alston  vs.  3IcDoivaJI,(a) 
renders  it  unnecessary  to  say  much  here.  The  plaintiff,  it  is  admitted, 
made  out  no  title.  And  the  defendant  is  not  proved  to  have  been  a  dis- 
seizor. The  question  made  by  the  counsel  in  argument,  did  not  arise. 
The  endorsement  which  the  plaintiff  is  required  to  make  on  his  writ  and 
declaration,  gives  character  to  this  action,  which  is  to  try  titles.  I  have 
not  heard  it  doubted,  that  in  such  case,  the  ])laintilf,  where  there  has 
been  no  tortious  eviction,  could  only  recover  on  proof  of  good  title.  It 
would  !«'  of  very  little  use  to  go  l>ack  to  the  feudal  system  for  the  origin 
of  land  titles. — Whether  or  not  the  land  in  this  State  should,  in  point  of 
law,  all  l)e  jiresnmed  to  have  been  granted,  is  a  question  of  policy,  which 
we  need  not  consider,  much  less  decide.  There  can  be  no  acquisition  of 
title  against  the  Slate,  except  by  grant,  or  a  possession  which  will 
authorize  the  presumption  of  a  grant.  Less  than  twenty  years  will  not 
answer  that  purpose.  And  a  i>laintiff  can  only  make  out  a  perfect  title, 
by  prodnejiig  u  grant,  or  by  proving  such  a  possession  in  himself,  or  some 
one  from  whom  he  derives  title.     A  possession  of  sixteen  years  only, 

(a)  Sup.,  444.     An. 


*450]  GOLDTHWAITIIE    &    EVANS   VS.    BTRANT.  299 

pupposinc:  it  clearly  proved  to  have  been  of  the  lands  in  dispute,  which 
terminated  fifty  years  ago,  cannot  stand  in  the  ])lace  of  title.  It  cannot 
be  allowed  to  ])revail  against  the  actual  possession  of  the  defendant,  who 
did  not  enter  upon  the  plaintiff,  and  which,  for  ought  that  ajipeurs,  may 
be  as  rightful  as  that  which  the  plaintiff  formerly  held.  Until  the  true  title 
appears,  we  must  regard  the  ^actual  possession,  when  not  forcibly  r:|:4ci 
obtained,  as  the  best  evidence  of  it,  and  entitled  to  protection.  ^ 
Motion  dismissed. 

Gantt,  Richardson  and  Butler,  JJ.,  concurred. 

O'Neall,  J.  Where  the  plaintiff's  possession,  actual  or  constructive, 
is  entered  upon,  I  think  that  such  possession  is  evidence  of  title  to  put 
the  defendant  to  prove  his  title. (a)  In  this  case,  I  understand  the  plain- 
tiff or  his  ancestor  never  had  possession,  actual  or  constructive.  T, 
therefore,  am  satisfied  with  the  nonsuit. 

Pelirjru  and  Hunt,  for  the  plaintiff.    Mayzick  and  3Iemminger,  contra. 


GOLDTHWAITE  &  EVANS  VS.   LeWIS  H.  BrYANT. 

Tlie  right  of  property  in  goods  attaclied,  if  claimed  by  the  garnishee,  or  by 
another,  may  be  tried  in  the  form  of  a  feigned  issue,  wherein  the  garnishee  or 
otlier  claimant  is  plaintiff,  as  well  as  in  any  other  form. 

Where  a  third  person,  not  served  as  a  garnishee,  lays  claim  to  the  goods  attached, 
and  is  allowed  to  come  in  with  the  privilege  of  a  garnishee,  and  to  make  up  a 
feigned  issue  as  plaintiff,  to  try  the  right  of  property,  whereby  he  gains 
possession  of  the  goods,  if  he  afterwards  discontinue,  and  withdraw  the  record, 
he  cannot  then  require  a  suggestion  to  be  filed  by  the  plaintitf  in  attachment, 
who  is  entitled  to  judgment  against  him  as  a  defaulting  garnishee. 

Before  Earle,  J.,  at  Charleston,  May  Term,  1839. 

A  foreign  attachment,  at  the  suit  of  the  plaintiffs,  against  the  defendant, 
was  levied  on  a  mare  at  livery,  and  Matthews,  the  keeper  of  the  stables, 
was  made  a  garnishee.  An  order  for  sale  was  made,  and  rescinded  at 
the  instance  of  one  Naylor,  who  claimed  the  mare,  and  he  had  leave  to 
come  in  as  garnishee,  and  contest  the  right  of  property.  An  issue  was 
made  up,  and  stood  for  trial.  When  called,  the  attorney  of  Naylor  moved 
for  leave  to  discontinue,  which  being  granted,  he  withdrew  the  record. 
Afterwards,  during  the  term,  a  motion  was  made  by  the  attorney  of  the 
plaint  ills  in  attachment,  for  leave  to  sign  judgment  against  Naylor  as 
^defaulting  garnishee ;  which  was  resisted,  upon  the  ground  that  r^^Ko 
Naylor  having  denied  the  right  of  property  in  the  absent  debtor,  ^ 
it  was  for  the  plaintiffs  to  become  the  actors  in  the  suggestion,  and  to 
disprove  the  return.  But  the  Circuit  Court  granted  the  order  for  judg- 
ment against  him,  which  he  moved  the  Court  of  Appeals  to  set  aside. 

Appeal  determined  at  Charleston,  February,  1840. 

Curia,  per  E.uile,  J.    Whatever  may  be  the  correct  practice  in  regard 

(a)  3  Strob.,  480.     An. 


300  CHARLESTON,  FEBRUARY,  1840.      APP.  VOL.  I.       [*452 

to  issues  made  up  to  try  the  right  of  property,  under  the  attachment  Act, 
it  is  unnecessary  to  determine.  The  practice  has  been  very  general,  if 
not  uniform,  in  Charleston,  to  do  this  in  the  form  of  a  feigned  issue,  in 
which  the  party  claiming  in  opposition  to  the  attaching  creditor,  is  the 
plaintiff.  Such  was  the  case  here  ;  and  no  doubt,  the  question  can  as 
well  be  tried  in  that  form  as  any  other.  When  Naylor  came  in  and 
claimed  title,  he  jilaced  himself  in  the  position  of  being  an  actor  in  the 
subsequent  proceeding  ;  he  obtained  possession  of  the  mare,  and  rendered 
an  action  of  trover  unnecessary.  The  discontinuance  was  ordered  at  the 
instance  of  his  counsel.  If  he  had  repudiated  the  issue,  he  could  not 
have  made  that  motion.  By  making  it,  he  admitted  himself  to  be  the 
plaintiff  in  the  proceeding;  as  having  instituted,  and  as  having  a  right  to 
abandon  it.  Having  discontinued,  the  condition  on  wiiich  he  rescinded  the 
order  of  sale  was  not  complied  with,  and  the  parties  must  be  restored  to 
the  position  which  they  occupied  when  he  interposed.  He  can  claim  no 
better  position  than  Matthews,  in  whose  place  he  was  substituted,  that  of 
a  garnishee  in  possession,  admitting  the  right  of  the  absent  debtor.  It 
would  be  productive  both  of  hardship  and  delay,  to  allow  him  to  shift 
liis  ground,  and  to  have  now  all  the  advantages  of  an  original  garnishee, 
denying  the  right  of  the  al)sent  debtor  ;  conceding,  in  such  case,  the  cor- 
rect practice  to  be,  that  the  plaintiff  in  attachment  should  be  the  actor  in 
the  suggestion  and  issue 

The  judgment  of  the  Circuit  Court  is  affirmed. 

Gantt,  Richardson,  O'Nball,  and  Butler,  JJ.,  concurred  ;  Evans, 
absent. 

Thompson,  for  the  motion.     Bailey,  contra. 

See  1  Rich.,  4G0  ;  1  Strob.,  244.     An. 


*453]  *J.  F.  Entz,  Survivor,  vs.  Mills  &  Beach. 

An  auctioneer's  clerk  is  not  such  an  agent,  within  the  statute  of  frauds,  whose 
entry  will  hind  the  party ;  unless  the  authority  of  the  clerk  (to  make  the 
entry)  lias  been  specially  obtained  from  the  party  who  is  to  be  bound  by  his 
act,  or  he  has  afterwards,  assented  to  be  charged  by  it. 

Before  Earle,  J.,  at  Charleston,  May  Term,  1839. 

This  was  an  action  of  assumpsit  to  ixjcover  the  price  of  sundry  articles 
sold  liy  Entz  &  Williams,  of  whom  the  plaintiff  is  survivor,  at  auction, 
on  the  l;Jtli  July,  1«:38,  and  charged  to  the  defendants. 

It  was  an  e.Ktensive  sale  made  by  Trenholm,  Smith  &  McCormick. 
The  entries  in  their  sales  book  were  made  by  their  clerk,  who  was  offered 
as  a  witness  to  prove  them.  The  sale  was  conducted  in  the  following 
manner:  ^McCormick  was  the  auctioneer.  When  an  article  was  knocked 
down,  the  name  of  the  purchaser  was  repeated  aloud,  with  the  article  and 
the  price,  to  the  clerk,  who  was  within  ten  or  twelve  feet,  and  he  made 
the  entry  in  the  book.  One  of  the  defendants  was  present,  and  did  pur- 
chase.    The  clerk  supposed  he  must  have  heard  their  names  repeated  as 


^•453] 


ENTZ    VS.    MILL    &    BEACH.  301 


the  purchasers  of  tlie  particular  articles  set  down  to  them  at  these  prices ; 
but  the  clerk  received  no  directions  from  him  to  make  the  entries,  nor 
did  either  of  the  auctioneers  actually  see  the  entries  made.  McCormick 
examined  the  books  the  next  day,  and  found  them  correct.  The  defend- 
ant who  made  the  purchases,  when  the  bill  was  rendered  made  no  objec- 
tion to  the  prices,  but  refused  to  take  the  articles,  except  nine  casks  of 
wine,  and  thirty-seven  casks  of  oil,  which  they  accepted  and  offered  to 
pay  for.  Each  purchase  made  a  separate  entry.  Those  accepted  were 
lots  21  and  69. 

The  entries  in  the  sales  book  were  rejected  as  evidence,  and  the  plaintiff 
had  a  verdict  for  the  price  of  the  wine  and  oil. 

The  plaintiff  moves  for  a  new  trial,  on  the  ground  of  error,  iu  exclud- 
ing the  books. 

GROUNDS   OF   APPEAL. 

1  That  in  the  ca?e  of  a  sale  at  auction,  where  the  purchasers  knew  at  the 
time  of  the  sale,  that  they  were  named  publicly  by  the  auctioneer,  as  the  bidder ; 
and  also  the  articles  they  had  bought,  and  the  prices  paid  for  them  ;  and  the 
auctioneer,  at  the  time  and  place  of  sale,  announced  to  his  clerk  the  names  of 
such  persons  as  purchasers,  and  the  articles  purchased,  and  the  prices — who  at 
the  same  time  and  place  made  an  entry  of  the  same  iu  the  sales  book  of  the 
auctioneer — that  this  was  a  sufHcicat  memorandum  to  take  the  sale  out  of  the 
statute  of  frauds. 

2.  That  where  a  purchaser  is  j^rcsent  at  a  sale  by  auction,  and  hears  his 
name  announced  as  a  buyer,  with  the  articles  bought,  and  the  prices  for  the 
*sarae,  and  is  subsequently  furnished  with  a  bill  of  parcels  of  the  articles  r* .  - 1 
sold,  and  makes  no  objection  to  the  bill  of  parcels,  this  is  a  sufficient  ■- 
recognition  of  the  correctness  of  the  original  memorandum  made  by  the  clerk 
of  the  auctioneer,  and  of  which  the  bill  of  parcels  was  a  copy,  to  authorize  such 
original  memorandum  to  be  used  in  evidence,  and  to  take  the  sale  from  the 
operation  of  the  statute. 

3.  That  when  a  person  is  present  at  a  sale  by  auction,  and  is  announced  by 
the  auctioneer  as  a  purchaser ;  and  also,  at  the  same  time,  the  articles  sold, 
and  the  i)rices,  are  announced,  and  an  entry  or  memorandum  to  that  effect,  and 
including  these  particulars,  is  made  by  the  clerk  of  the  auctioneer,  and  the 
person  announced  as  the  purchaser  does  not  dissent  from  the  assertion  made 
that  he  was  the  purchaser  of  such  articles  for  such  prices,  that  this  is  a  sufficient 
authority  fur  the  clerk  to  make  a  memorandum  of  such  a  sale,  so  as  to  charge 
such  person  as  a  purchaser,  and  to  take  the  sale.from  the  operatiou  of  the  stat- 
ute of  frauds. 

4.  That  where  a  purchaser  is  furnished  with  a  bill  of  the  articles  sold,  and 
the  prices  at  which  the  same  were  sold,  and  takes  one  of  several  parcels  which 
had  been  sold,  and  all  of  which  are  enumerated  in  the  bill  furnished,  and  does 
not  deny  the  sale,  nor  the  prices  affixed  to  the  articles,  but  only  objects  to  the 
quality  of  the  articles  sold — this  is  a  sufficient  recognition  of  a  previous  contract, 
to  authorize  the  iutroduction  iu  evideuce  of  the  original  memorandum  made  by 
the  clerk  of  the  auctioneer,  and  of  which  the  bill  furnished  was  a  copy. 

5.  That  where  an  auctioneer  publicly  announces  an  individual  as  a  purchaser, 
and  such  person  is  present,  and  does  not  dissent,  nor  deny  the  assertion  made 
of  !iis  being  the  purchaser;  and  at  the  same  time  the  auctioneer  names  the 
articles  sold,  and  the  prices,  and  none  of  these  are  denied;  and,  subsequently, 
a  bill  of  parcels  is  reudered  to  such  person,  to  which  he  does  not  object,  and 
accepts  one  of  the  several  parcels  charged  to  him  iu  the  said  bill ;  this  is  a 
suUicientcoiitirniation  of  a  memorandum  made  at  the  time  and  place  of  sale 
by  the  clerk  of  the  auctioneer,  of  tiie  name  of  the  purchaser,  the  articles  sold, 
and  the  prices,  and  of  which  the  bill  of  parcels  was  a  copy — so  as  to  authorize 


302  CHARLESTON,  FEBRUARY,  1840.      APP.  VOL.  I.       [*454 

the  introduction  in  evidence  of  such  memorandum,  as  sufficient  to  charge  him 
as  a  purchaser,  and  to  take  the  case  from  the  statute  of  frauds. 

Appeal  determined  at  Cbarlestou,  February,  1840. 

Curia,  per  Earle,  J.  The  fundamental  principle  which  pervades  the 
whole  law  of  agency,  is,  that  an  agent  cannot  delegate  his  authority  ;  he 
cannot  appoint  a  sub- agent ;  he  cannot  substitute  another  in  his  place. 
Where  the  Courts  in  England  and  in  this  country  held  an  auctioneer,  who 
made  a  sale,  to  be  the  agent  of  both  the  vendor  and  purchaser,  it  was  per- 
^  .-r-i  haps*  a  departure  from  the  letter  of  the  statute,  but  justified  by 
-I  the  necessities  of  business.  To  hold  an  entry  by  the  clerk  of  aa 
auctioneer  to  be  a  compliance  with  the  statute,  would  be  virtually  a 
repeal.  If  it  had  not  been  seriously  argued,  I  should  have  considered 
the  point  too  plain  to  be  disputed.  AYe  understand  the  practice  is 
general  in  Charleston,  for  the  clerks  to  make  the  entries.  How  such  a 
mistake  has  arisen,  it  would  be  needless  to  conjecture.  It  has.  been 
ruled  otherwise,  both  here  and  in  England,  In  Jleadoics  vs.  Meadoics, 
the  very  point  was  made  and  decided,  that  an  entry  by  the  clerk  of  the 
auctioneer  was  not  a  compliance  with  the  statute,  (3  McCord,  458,)  and 
the  case  of  Coles  vs.  TrecoUdck,  (9  Yes,  251,)  there  referred  to,  decides 
the  same  point,  that  whatever  may  be  the  usage  of  trade,  an  auctioneer's 
clerk  is  not  an  agent  within  the  statute,  whose  signature  will  bind  the 
party,  unless  the  authority  of  the  latter  has  beea  specially  obtained,  or  he 
has  assented  to  it  afterwards.  The  authority  of  Lord  Eldou  is  always  of 
the  highest  consideration,  and  having  been  relied  on  to  sustain  the  case 
cited  from  McCord,  it  would  be  of  no  avail  to  cite  other  cases.  In  Mea- 
doics vs,  Meadoics,  the  sale  was  made  iu  !North  Carolina,  but  their 
statute  is  the  same. 

And  is  it  not  obvious,  upon  the  reason  of  the  thing,  that  the  clerk  is 
not  the  authorized  agent  of  the  buyer  ?  The  sale  is  made  by  the 
auctioneer.  lie  is  the  mutual  agent  of  the  parties,  and  the  very  ground. 
on  which  his  entry  is  held  to  bind  the  purchaser,  is,  that  it  is  made  upon 
the  s}iot,  at  the  time,  and  under  the  confidence  inspired  by  his  official 
cliaracter.  Such  an  entry  is  supposed  to  be  made  in  the  presence  of  the 
parties :  for  it  is  only  upon  that  ground  that  he  can  be  considered  the 
agent  of  the  purchaser.  When  the  clerk  is  twenty  yards,  or  twenty  feet, 
distant  at  the  time  the  article  is  knocked  down,  and  makes  the  entry  from 
the  mouth  of  the  auctioneer,  what  security  has  the  auctioneer  that  the 
entry  is  according  to  the  fact  ?  It  would  be  as  reasonable  to  hold  that 
an  entry  made  the  next  day,  or  a  week  after,  would  be  binding. 

It  was  argued,  and  the  suggestion  was  countenanced  by  one  of  the 
Court,  that  the  vendue  Act  has  made  a  change  on  that  subject.  I  think 
clearly  otiierwise.  Tluit  Act  seems  to  have"  been  framed  in  conformity 
with  the  decisions  of  the  Courts  on  the  statute  of  frauds.  Conceding 
that  the  auctioneer  is  the  agent,  and  may  bind  the  purchaser,  it  has  pro- 
vided that  lie  sliall  keep  books,  in  which  shall  be  entered  all  sales,  whether 
pul)lic  or  private.  It  would  seem  to  follow,  as  an  obvious  conclusion, 
that  the  enlries  which  are  required  to  be  made,  and  which,  when  proved, 
according  to  Carler  vs,  Bennett,  (Ril,  Ca.  28T,)(a)  are  enough  to  enable 
('/)  -6  mil,  254.     An. 


*455]  STATE   VS  ARTHUR   &   GtJIGNARD.  303 

the  auctioneer  to  recover  either  the  price  of  the  article  sold,  or  the 
difl'ereiice  between  a  first  and  second  sale,  must  be  made  by  the  auctioneer 
himself.  He  is  the  person  licensed,  who  gives  bond,  and  takes  an  oath  ; 
and  the  legal  eil'ect  of  his  entry  to  bind  the  partfes  arises  from  his  oQicial 
character,  and  tiie  ^confidence  reposed  in  him  by  both.  A  clerk  r^^rp 
known  to  neither  is  entitled  to  no  such  conlidence,  and  his  entry,  ^ 
not  made  in  the  presence  of  the  purchaser,  and  with  his  assent,  is  not  a 
compliance  wilh  the  statute,  and  does  not  bind. 

The  motion  to  set  aside  the  verdict  is  refused. 

Gantt,  Butler  and  Richardson,  JJ.,  concurred. 

Magrath,  for  the  motion.     Frost,  contra. 

See    Cathcart  vs.  Kernaghan,   5   Strob.,  130;    Wolfe  vs.   SJiarpe,  10  Rich.,   G3; 
Christie  VS.  JSimpson,  1  Eich.,  410;   3  McC,  458.     An, 


The  State  vs.  Arthur  and  Guignard. 

Whore  two  Justices,  under  the  habeas  corpus  Act,  had  admitted  a  person  to  bail, 
who  -was  cliarged  with  murder  in  the  warrant,  it  was  held  that  they  were  guilty 
of  an  escape,  and  might  very  properly  be  indicted. 

Before  Richardson,  J.,  Richland,  Fall  Term,  1838. 

The  defendants  were  justices  of  the  quorum,  and  admitted  to  bail  John 
Whitecotton,  committed  upon  a  charge  of  murder,  and  who  was  brought 
before  them  upon  a  habeas  cor'jms. 

Upon  motion  of  the  solicitor,  they  were  ordered  to  show  cause  why 
they  should  not  be  indicted  for  a  misdemeanor,  in  admitting  Whitecotton 
to  bail.     They  showed  cause,  as  follows  : 

"  That  the  said  Whitecotton  was  brought  before  them,  together  with  the 
warrant  of  commitment,  the  coroner's  incpiest,  and  the  affidavits  annexed, 
by  which  it  appeared  that  Abner  Striplin  was  the  slayer  ;  that  the  deceased 
died  of  the  blows  received  at  his  luind,  and  no  fact  appeared  to  establish 
any  concert  between  Whitecotton  and  Striplin  in  relation  to  the  act.  The 
respondents  believed  tliat,  independent  of  the  habeas  coiyus  Act,  they 
had  a  right  to  bail.  Two  justices  had  such  power  by  the  common  law, 
and  neither  the  statute  of  Westminster  1st,  nor  the  statute  of  2d  Phil,  & 
Mary,  has,  in  terms,  taken  it  away.  If  these  statutes  have  been  so  con- 
strued, it  has  not  come  to  their  knowledge. 

Ed.  J.  Arthur, 
JAxMes  S.  Guignard." 

*The  Court  ordered  an  indictment  to  be  given  out,  from  which  order  r*  i-- 
the  defendants  appealed,  upon  the  grounds  :  '- 

1st.  That  they  had  power  by  law  to  bail  the  prisoner. 
2d.  That  the  case  was  one  in  which  it  was  proper  to  grant  bail. 

Appeal  determined  at  Columbia,  Fall  Term,  1838. 

Curia,  per  Earle,  J.  I  very  much  doubt  the  propriety  of  deciding 
important  legal  questions  in  this  incidental  way  ui)on  a  rule  to  show 
cause  ;  and  also,  whether  the  order  of  the  Circuit  Judge  was  the  proper 


304  COLUMBIA,    FALL    TERM,    1838.       APP.  VOL.  I.        [*457 

subject  of  appeal.  He  directed  an  indictment  to  be  preferred  against 
the  defendants,  and  as  they  conld  not  be  affected  by  proceeding,  until 
thev  were  put  on  tlieir  Ij'ial,  it  seems  to  me  that  the  proper  time  and 
mode  of  making  the  question  on  their  power  to  admit  to  bail,  would 
have  been  on  the  trial,  and  by  plea.  As  the  question,  however,  has  been 
argued  here  on  the  appeal,  it  is  thought  best  to  express  the  opinion  of 
the  Court  on  the  subject. 

It  would  seem  to  be  sufficient  for  the  purpose,  to  refer  to  the  case  of 
the  Slate  vs.  Ecerett  d-  Potter,  (Dudley,  295,)  and  to  examine  the  com- 
mitment. The  charge  is  "that  the  said  John  Whitecotton  did  wilfully 
and  feloniously  kill  and  murder  the  said  Hiram  Addison."  Here  is  a 
felony  plainly  expressed  in  the  warrant  of  commitment ;  and  is  the  very 
exception  made  by  the  habeas  corpus  Act,  which  excludes  a  party  from 
the  benefit  of  its  provisions.  The  subject  of  bail  is  regulated  by  English 
statutes,  made  of  force.  The  leading  statute  is  Westminster  the  1st,  c. 
15,  in  the  construction  whereof  it  hath  been  held,  that  those  imprisoned 
for  the  death  of  a  man  were  declared  to  have  been  always  irreplevisable  ; 
(2  Hawk.  P.  C.  Ii7,)  and  there  is  no  statute  giving  to  one  or  two 
Justices  the  power  to  admit  to  bail  persons  declared  not  to  be  bailable 
by  the  statute. 

After  an  examination  of  all  the  statutes,  Mr.  Sergeant  Hawkins  says, 
"  that  Justices  of  the  Peace  have  no  power  to  bail  any  person  not 
replevisal)le  by  the  above  mentioned  statute  of  West.  ],  c.  15."  And 
altliough  the  Act  of  Assembly  of  1712,  (2  Stat,  large,  399,)  gives  power 
to  any  two  Justices,  one  to  be  of  the  quorum,  to  execute  and  put  in  force 
the  habeas  corpus  Act,  yet,  by  the  provisions  of  the  latter,  a  person 
charged  with  murder,  "  a  felony,  plainly  and  specially  expressed  in  the 
warrant  of  commitment,"  is  not  to  be  admitted  to  bail.  He  is  in  con- 
finement by  a  warrant,  in  the  language  of  the  Act,  "for  a  matter  of 
offence,  for  the  which,  by  the  law  the  prisoner  is  not  bailable."  If, 
therefore,  the  Justices  had  no  express  authority  by  any  other  Statute  or 
Act,  and  if  the  prisoner's  case  is  excepted  out  of  the  provisions  of  the 
habeas  corpus  Act,  they  were  guilty  of  an  escape,  in  admitting  him  to 
bail,  and  were  properly  ordered  to  be  indicted. 

The  Judges  of  the  Court  of  Common  Pleas  and  Sessions,  having  all 
the  power  of  the  Court  of  King's  Bench,  may  bail  in  all  cases  of  offence 
*4581  ^''''^^^^'^^')  ^according  to  circumstances  ;  and  this  either  in  term 
'  ^  time,  or  at  chambers.  They  will  look  into  the  depositions,  and 
examinations,  and  into  the  inquest ;  and  take  other  evidence,  if  need  be. 
But  this  is  by  virtue  of  their  original  and  inherent  superintending 
power,  and  not  derived  from  the  habeas  corpus  Act.  Any  number  of 
inferior  magistrates  united,  have  no  such  power,  and  it  would  be  of 
dangerous  tendency  to  confer  it  upon  them. 

W'hile  at  the  bar,  I  prosecuted  an  indictment,  against  two  Justices,  for 
admitiing  to  liail  one  charged  with  the  murder  of  a  slave,  and  they  were 
convicted  and   lined. (a) 

Motiun  dismii^seil 

Gantt,  r.icirAiiDsoN,  P,UTLER    and  Evans,  JJ.,  concurred. 

De  Saussure  for  the  motion  ;  J.  1).  Edwards,  Solicitor,  contra. 

(«)  Vide  Acts  1S30,  page  15. 

.See  11  Kiel).  63;  Dud.  295.     An. 


^458] 


STATE   VS.    GUNTER.  305 


The  State  vs.  Erasmus  Gunter. 


A  question  of  credit  between  two  witnesses,  is  to  be  left  to  the  jury,  and  their  find- 
ing will  not  be  disturbed,  notwithstanding  it  may  be  contrary  to  the  views  of  the 
presiding  judge,  expressed  in  his  charge. 

Before  Earle,  J.,  Richland,  Spring  Term,  1836. 

This  was  an  indictment  for  buying  corn  from  a  negro  man  slave,  named  Bob, 
belonging  to  the  estate  of  David  Myers. 

James  Gi-ay,  the  only  witness  produced  on  the  part  of  the  prosecution,  proved 
the  offence,  substantially  as  laid  in  the  indictment.  He  was  living  with  the  defend- 
ant as  a  hireling.  Slept  in  the  house,  which  contained  only  two  rooms.  The 
defendant  occupied  the  inner  or  small  room.  Bob  knocked  at  the  window  of  the 
small  room  where  defendant  slept.  Learning  who  was  there,  defendant  directed 
Gray,  who  slept  in  the  outer  room,  to  open  the  door.  Defendant  went  out.  Bob 
brought  about  four  bushels  of  corn,  which  they  (defendant  and  Bob, )  carried  to  the 
barn,  and  on  their  return  defendant  paid  him  for  the  corn,  in  meat,  tobacco,  and 
whiskey.  It  occurred  an  hour  or  two  after  dark.  Afterwards,  Bob  brought  about 
two  bushels  *of  com,  a  Uttle  before  day,  and  the  defendant  bought  it,  and  r^^^c) 
paid  for  it  in  the  same  way.  The  negro  made  himself  known  as  before,  by  ^ 
knocking  at  the  window,  and  the  defendant  went  out  to  the  door  and  received  the 
corn,  paying  for  it  after  they  returned  from  the  barn ;  a  night  or  two  only^after  the 
former  time. 

The  witness  admitted  that  he  had  quarelled  with  defendant,  who  refused  to  pay 
him  his  wages,  and  on  that  account  he  had  got  mad,  and  parted  with  him.  On 
the  part  of  the  defendant,  EUzabeth  Gray,  (sister  of  the  former  witness, )  deposed, 
that  she  Lived  with  defendant  all  the  time  James  did.  She  occupied  the  inner 
room,  where  defendant  slept,  and  she  deposed  that  no  such  dealing  or  transaction 
ever  took  place  within  her  knowledge  ;  and  if  it  did  occur  at  all,  it  would  seem 
she  must  have  known  it. 

Other  witnesses  were  called  to  the  character  of  Gray,  both  to  discredit  him  and 
sustain  him.  Several  deposed  that  they  would  not  believe  him,  while  others  knew 
no  cause  why  they  should  not ;  and  would  believe  him.  Dr.  Briggs,  who  seems 
to  have  known  him  best,  gave  him  such  a  character  as  should  have  overthrown 
his  testimony  altogether,  according  to  the  opinion  of  the  presiding  Judge,  but  the 
jury  thought  otherwise,  and  found  the  defendant  guilty. 

It  was  a  question  of  credit  between  two  witnesses  ;  on  the  one'hand,  one  of  whom 
had  quarrelled  with  the  defendant,  and  the  other  was  his  paramour ;  on  the  other, 
between  a  witness  whose  character  was  proved  to  be  bad,  and  a  defendant  whose 
character  was  not  proved  to  be  good. 

Appeal  determined  at  Columbia,  Fall  Term,  1836. 

Curia,  per  Evans,  J.  Tliis  was  one  of  that  class  of  cases  which  a 
jury  are  more  competent  to  decide  than  this  Court.  The  evidence  was 
contradictory,  and  the  question  was,  whom  the  jury  should  believe. 
They  have  decided,  and  I  do  not  perceive  any  such  palpable  error,  as 
should  induce  this  Court  to  iuterfere.     The  motion  is  refused. 

Butler,  Earle  and  Richardson,  JJ.,  concurred. 

De  Saussure  for  the  motion.     Elmore,  Solicitor,  contra. 

See  Infra,  494. 
Yol.  I. —21 


306  COLUMBIA,   FALL    TERM,  1839.      APP.  VOL.  L         [*460 


*460]  *J.  A.  M  Devall  vs.  Ivy  Taylor. 

If  the  proceedings  of  a  justice,  from  -wlioin  a  writ  of  Domestic  Attachment  issued, 
shows  upon  its  face,  that  the  justice  had  no  authority  to  grant  the  attacliment, 
or  if  it  fail  to  show  that  he  had,  then  no  judgment  could  be  given  upon  it,  either 
by  himself  or  the  circuit  court,  but  the  whole  in  an  absolute  nullity  ;  and  it  is  of 
no  consequence  in  what  way  the  defect  is  brought  to  the  view  of  the  Court,  or  at 
whose  motion  it  is  quashed. 

Before  Earle,  J.,  at  Abbeville,  Fall  Term,  1839. 

This  was  a  writ  of  domestic  attachment,  levied  and  returned.  On 
motion  being  made  for  a  decree,  the  attention  of  the  Court  was  called  to 
the  affidavit  of  the  plaintiff,  for  the  purpose  of  obtaining  the  attachment, 
which  stated  the  indebtedness,  and  that  the  defendant  was  about  to 
remove  out  of  the  State  personally,  or  so  absconded  and  concealed  him- 
self that  process  could  not  be  served  on  him.  And  it  was  moved,  by 
Mr.  Burt,  to  set  aside  the  attachment,  for  insufficiency  in  the  affidavit  to 
give  the  justice  jurisdiction.  The  order  was  made  accordingly  to  quash 
the  attachment,  which  the  plaintiff  now  moves  to  set  aside,  and  for  a 
decree. 

GROUNDS    OF   APPEAL. 

1.  Because  the  defendant  in  attachment  cannot  appear  by  attorney,  until  the 
attachment  has  been  dissolved.  And  no  one  except  the  defendant,  can  take 
advantage  of  irregularities  in  the  attachment. 

2.  Because  the  Court  will  not,  upon  motion,  set  aside  an  attachment  for 
irregularity. 

Appeal  determined  at  Columbia,  Fall  Term,  1839. 

Curia,  per  Earle,  J.  The  attachment  Acts  authorize  justices  of  the 
peace  to  grant  writs  of  attachment,  in  certain  cases,  on  the  oath  of  the 
plaintiff,  returnable,  either  to  the  next  court  for  the  district  or  before 
themselves,  according  to  the  amount  sued  for.  The  cases  provided  for, 
in  which  justices  have  this  extraordinary  jurisdiction,  are — 1.  Where  the 
debtor  is  removing  out  of  the  district  privately ;  2.  Where  he  absconds 
and  conceals  himself,  so  that  the  ordinary  process  of  law  cannot  be  served 
ui)on  him  ;  3.  Where  be  intends  to  remove  his  effects.  Although  it  has 
been  held,  in  McKenzie  vs.  Buchan,  (1  N.  &  McC,  205,)  that' the  oath 
of  the  plaintiff,  estal)]ishing  the  ]iarticular  state  of  facts  which  gives 
juri>dicfion  to  the  justice,  need  not  be  in  writing,  yet  it  is  clear,  both  on 
general  principle  and  on  authority,  that  it  should  be  recited  in  the  writ. 
This  is  universally  true,  of  all  courts  of  inferior  and  limited  jurisdiction, 
thnt  their  proceedings  must  show,  upon  their  face,  that  the  subject  matter 
i.s  within  their  jurisdiction,  else  they  will  be  regarded  as  nullities.  And 
*4611  ^^^^  ""'"y  ^'^"^'"  *^^'''  ^^  found  in  the  English  courts,  and  in  our 
own,  of  their  being  quashed  on  motion.  The  general  rule,  as 
stated  by  tlic  Court  in  Winford  vs.  Poxoell,  (2  Lord  Raymond,  1310,) 
in  regard  to  inferior  courts,  is,  that  nothing  shall  be  intended  to  be 
within  (he  jurisdiction,  that  is  not  expressly  averred  so  to  be  ;  though,  in 
the  case  of  a  superior  jurisdiction,  nothing  shall  be  intended  out  of  it. 
(0  Mod.,  223;  .'3  Mod.,  322;  Str.,  8  ;  6  Term.,  .583.) 

Wherever  a  special  authority  is  given  to  justices,  it  ought  to  appear 
that  the  authority  has  been  exactly  pursued.     And,  said  Lord  Chancellor 


*461]  EASTERBY    VP.    HKILBRON.  307 

Pratt,  in  a  case  before  him,  "  I  do  not  see  to  wliat  purpose  we  exercise  a 
superior  intendency  over  all  inferior  jurisdictions,  unless  it  be  to  inspect 
their  proceedings,  and  see  whetlier  they  are  regular  or  not.  I  have  often 
heard  it  said,  that  nothing  shall  be  presumed,  one  way  or  the  otlier,  in 
an  inferior  jurisdiction."  If  the  proceeding  show,  upon  its  face,  that  the 
justice  had  no  authority  to  grant  the  attachment,  or  if  it  fail  to  show  that 
he  had,  then  no  judgment  could  be  given  upon  it,  either  by  himself  or 
the  Circuit  Court ;  but  the  whole  is  an  absolute  nullity  ;  and  it  is  of  no 
consequence  in  what  way  the  defect  is  brought  to  the  view  of  the  Court, 
or  at  whose  motion  it  is  quashed.  The  case  of  Hagood  vs.  Hunter,  (1 
McC.  511,)  is  exactly  this  case,  and  perhaps  it  would  be  enough  to  refer 
to  it.  There  the  affidavit  was,  that  the  defendant  "was  about  to  remove 
from  and  without  the  limits,  or  so  abscond  and  conceal  himself."  Here 
the  oath  is,  that  "  he  is  about  to  remove  out  of  the  state,  personally,  or 
so  abscond  and  conceal  himself."  To  authorize  the  attachment,  there 
should  be  a  i)rccise  allegation  of  some  one  of  the  three  categories  which 
give  jurisdiction.  To  be  about  to  remove  out  of  the  State,  personally,  is 
very  different  from  being  in  the  act  of  removing  privately  out  of  the  dis- 
trict, and  would  not  authorize  the  justice  to  grant  the  attachment.  There 
is  as  much  reason  to  suppose  the  writ  issued  on  that  part  of  the  oath  as  on 
the  other.  Indeed,  I  would  consider  an  affidavit,  or  the  recital  of  one,  in 
the  disjunctive,  as  bad,  although  either  of  the  facts  deposed  to  might  be 
sufficient.  This  is  very  unlike  the  cases  of  Havis  vs.  Ti-app  and  Gres- 
ham  vs.  Deale.  (2  N.  &  McC.  130.)  There  the  motion  was  to  allow 
the  defendant  to  introduce  affidavits  of  himself  and  others,  to  contradict 
on  the  oath  of  the  plaintiff,  and  to  quash  the  indictment  because  it  was  not 
true.  This  was  refused,  because  it  would  make  up  a  collateral  issue, 
upon  a  point  on  which  the  Act  had  provided  that  the  oath  of  the  plaintiff 
should  alone  be  sufficient.  And  the  Court  properly  refused  to  go  into 
evidence  aliunde,  when  the  attachment  was  regular  and  valid  on  its  face. 
The  attachment  here  was  properly  quashed  in  the  Circuit  Court ;  and 
the  motion  is  refused. 

Richardson,  Gantt,  O'Xeall,  Evans  and  Butler,  JJ.,  concurred. 

Wardlaio  and  Ferrin,  for  motion.     Burt  and  Thompson,  contra. 

See  Supra.  2(j4  ;  note  2(i6.     An. 


*  George  Easterby  vs  James  Heilbron,  [46i 

The  same  l's.  The  same. 

In  the  construction  of  covenants,  the  intention  of  the  parties  must  govern,  where 
the  intention  can  be  ascertained  from  the  instrument  itself.  Parol  proof  is  not 
admissible  to  explain  a  deed  of  covenant,  where  there  is  no  ambiguity. 

Before  Earle,  J.,  at  Charleston, . 

These  were  actions  of  rep)levin,  in  which  the  parties,  pleadings, 
and  evidence  were  the  same.  The  defendant  avowed  for  rent  in  arrear. 
Pleas,  lion  tenuit,  and  no  rent  in  arrear;  to  which,  in  the  second  action, 
was  added  the  further  plea  of  no  rent  in  arrear,  nisi  a  certain  sum,  which 
was  tendered. 


308  CHARLESTON-,  FEBRUARY,  1840.       APP.  VOL.  I.       [*462 

The  premises  demised  consisted  of  the  lot  at  the  northeast  corner  of 
Cluu-ch  and  Queen  streets,  "  together  with  the  three  brick  tenement 
dwelling  honses  thereon  ;  and  also  the  brick  buildings  now  in  the  progress 

COPY  OF  THE  LEASE. 

South    Carolina : — 

Jlemorandum  of  an  agreement,  made  and  concluded  upon,  by  and  between  Dr. 
James  Heilbrou,  of  Charleston,  of  the  one  part,  and  Captain  George  Easterby,  of 
the  same  place,  of  the  other  part. 

The  said  James  Heilbron,  for  and  in  consideration  of  the  simi,  or  yearly  rent, 
hereinafter  mentioned,  has  agreed  to  let,  lease,  demise,  and  to  farm  let,  and  by 
these  presents,  doth  let,  lease,  demise,  and  to  farm  let,  nnto  the  said  George 
Easterby,  all  that  certain  messuage,  piece,  and  parcel  of  land,  situate,  lying  and 
being  in  the  City  of  Charleston,  at  the  North  East  corner  of  Church  and  Queen 
streets,  measuring  and  containing  on  Church  street  one  hundred  and  sixteen  feet, 
and  on  Qui'i-n  street  sixty-six  feet,  together  with  the  three  brick  tenement  dwelling 
houses,  and  other  buildings  thereon,  and  also  the  brick  buildings  now  in  the  pro- 
gress of  erecting  thereon,  and  all  the  buildings,  hereditaments,  and  appurtenances, 
to  the  aforesaid  premises  belonging,  for  the  term  of  five  years,  commencing  on  the 
10th  day  of  July,  in  the  year  of  our  Lord  one  thousand  eight  himdred  and  thirty- 
six,  and  ending  on  the  tenth  day  of  July,  in  the  year  of  our  Lord  one  thousand 
eight  hmifli-ed  and  forty-one ;  subject,  nevertheless,  to  the  covenants  and  consi- 
derations hereinafter  stipulated. 

The  said  George,  Easterby,  in  consideration  of  the  above  letten  premises,  doth 
covenant,  jjromise  and  agree,  to  pay  unto  the  said  James  Heilbron,  his  lawful 
attorney,  executors,  administrators,  or  assigns,  for  the  use  and  occupation  or  rent 
of  the  said  messuage,  piece,  or  parcel  of  land,  with  the  buildings  already  erected 
thereon,  at  the  rate  of  three  hundred  dollars  per  annum,  payable  quarterly,  until 
the  brick  buildings  on  Church  street,  appurtenant  thereto,  now  in  the  progress  of 
being  erected  thereon,  are  completed  and  finished ;  and  as  soon  as  the  said  brick 
buildings  on  Cliurch  street,  appurtenant  thereto,  are  completed  and  finished,  the 
said  George  Easterby,  for  himself,  his  executors  and  administrators,  doth  covenant, 
promise  and  agree,  to  pay  unto  the  said  James  Heilbron,  liis  certain  attorney,  execu- 
tors, administrators  or  assigns,  for  the  use  and  occupation  or  rent  of  the  whole  of 
the  said  premises,  the  yearly  rent  or  sum  of  one  thousand  three  hundred  dollars 
per  annum,  from  the  time  of  such  completion,  delivery  or  tender,  during  the  resi- 
due of  the  continuance  of  this  lease,  payable  quarterly ;  and  doth  also  coA'enaut, 
promise  and  agree,  well  and  truly  to  keep  the  said  premises,  and  use  them,  as  the 
intention  of  this  agreement  directs,  and  at  the  end  of  the  said  term,  on  the  tenth 
July,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  forty-one,  to  sur- 
render and  deliver  up  the  same,  to  the  said  James  Heilbron,  his  agent,  executors, 
a<lministrator.s  or  assigns. 

.Ami  it  is  further  nmtually  covenanted  and  agreed  upon,  by  and  betweeu  the 
parties  to  these  presents,  that  the  said  James  Heilbron,  his  executors  or  adminis- 
trators, is  to  erect  and  finish,  at  his  own  expense,  the  brick  buildings  on  Church 
ctrc.-t,  appurtenant  thereto,  as  soon  as  the  said  James  Heilbron  can  get  the  same 
flnislK'd  and  completed,  by  the  workmen,  under  the  contracts  now  existing  for  the 
coinpi.-tion  thereof;  the  said  Imildings  to  be  erected  and  finished  by  the  said  James 
H<'ill>r<iii,  according  tu  his  own  plan  and  diectious,  and  in  such  manner  and  form  of 
exN-ninl  an<l  internal  arrangements,  finish,  decoration,  convenience,  and  accoiumo- 
datinii,  as  lie  jjleases,  and  deems  expedient,  without  the  control,  interference  or 
control  of  tlie  Haid  (tcurge  Easterl)y,  in  any  manner  whatsoever,  and  without,  in 
any  manner  wliatsoever,  releasing  the  said  George  Easterby,  his  executors  or 
administrators,  from  the  obligation  of  this  lease:  And  wlieneVor  the  said  James 
Heilbron,  liis  executors  or  administrators,  declares  the  said  buildings  completed 
and  finislied,  of  which  lie  is  to  be  the  sole  and  exclusive  judge,  and  tenders  the 
uae  and  occupation  tlicroof  to  the  said  George  Easterby,  the  said  George  Easterby, 
hiH  executors  or  assigns,  shall  be  bound  to  receive  aiid  accept  the  same,  without 
objection,  refusal  or  pretence,  of  any  kind  whatsoever;    and  the  said  George 


^462] 


EASTERBT    VS.    IIEILBRON.  309 


of  being  erected  tliereon  ;  and  all  the  buildings,  hereditaments,  and  appur- 
tenances, to  the  aforesaid  premises  belonging."  The  term  was  for  five 
years,  commencing  the  10th  July,  183G.  The  plaintiif,  among  other 
things,  covenanted  to  pay  rent  for  the  lot,  "with  the  buildings  already 
erected  thereon,  at  the  rate  of  three  hundred  dollars  per  annum,  payable 
^quarterly,  until  the  brick  buildings  on  Church  street,  appurtenant  r^ i/.q 
thereto,  now  in  the  progress  of  l)eing  erected  thereon,  are  completed  ^ 
and  finished;  and  as  soon  as  the  said  brick  buildings  on  Church  street 

Easterby,  his  executors  or  administrators,  shall  from  the  time  of  such  tender, 
become  liable  and  bound  to  pay  to  the  said  James  Heilbron,  his  attorney,  executore, 
administrators  or  assigns,  the  annual  rent  or  sum  of  one  thousand  tlu'ee  hundred 
dollars  per  annum,  payal)le  quarterly,  until  the  said  tenth  July,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  forty-one. 

And  it  is  further  mutually  covenanted  and  agreed  upon,  by  and  between  the 
parties  to  these  presents,  that  the  said  James  Heilbron  is  to  allow  to  the  said 
George  Easterby  a  deduction  of  three  hundred  dollars,  from  the  first  years's  rent 
of  the  premises,  commencing  from  the  date  of  the  lease  ;  the  whole  sum  of  three 
hundred  dollars  is  hereby  stipulated  and  agreed  to  be  expended  by  the  said  George 
Easterby,  in  such  repairs  and  improvements  as  he  deems  proper,  on  the  dwelling 
houses  and  outbuilding  already  erected  ;  and  the  said  George  Easterby  to  claim  no 
other  deduction  or  expense  of  repair,  oh  any  part  of  the  whole  premises,  during 
the  continuance  of  the  lease.  If  the  said  George  Easterby  wishes  or  requires  any 
other  ordinary  repairs,  or  improvements,  to  any  part  of  the  hereby  demised 
premises,  during  the  lease,  the  same  are  to  be  put  and  made  at  his  sole  expense, 
without  recourse  to  the  said  James  Heilbron,  his  executors,  administrators  or 
assigns  ;  but  if  extraordinary  repairs,  arising  from  devastation,  by  storm,  or  partial 
injury  from  fire,  become  necessary,  during  the  continuance  of  this  lease,  such  ex- 
traordinary repairs  shall  be  made  by  and  at  the  expense  of  the  said  James  Heil- 
bron, his  executors,  administrators  or  assigns.  All  taxes  and  assessments,  to  be 
paid  by  James  Heilbron. 

And  it  is  further  mutually  covenanted  and  agreed  upon,  by  and  between  the 
parties  to  these  presents,  that  the  said  George  Easterby,  his  executors  or  adminis- 
trators, shall  and  will  keep  the  aforesaid  premises,  dwelling-houses,  and  outbuild- 
ings, in  good  repair,  and  tenantable  order,  (extraordinary  damage,  from  storm  or 
fire,  as  aforesaid,  excepted, )  at  his  own  projjer  expense,  and  at  the  expiration  of 
this  lease,  restore  the  same  to  the  said  James  Heilbron,  his  executors,  administra- 
tors, or  assigns,  in  like  order  as  he  receives  them :  And  the  said  George  Easterby, 
for  himself,  his  executors,  and  administrators,  doth  covenant  and  agree,  not  to 
assign  this  lease,  or  any  unexpired  term  of  it,  without  the  consent  and  approba- 
tion of  the  said  James  Heilbron,  his  executors,  administrators,  or  assigns. 

And  it  is  further  mutually  covenanted  and  agreed  ujjon,  by  and  between  the 
parties  to  these  presents,  that  if  the  dwelling  houses  upon  the  messuage  or  parcel 
of  land  contained  in  this  lease,  be  destroyed  by  fire,  at  any  time  during  the  said 
term  of  five  years,  that  this  lease  shall  immediately  cease  and  determine,  and  be 
null  and  void,  for  the  residue  of  the  said  term  of  five  years  ;  and  the  said  James 
Heilbron,  his  executors,  administrators  and  assigns,  shall  be  at  full  liberty  to  re- 
enter upon  the  said  premises,  and  repossess  himself  thereof,  without  the  hiuder- 
ance,  molestation,  or  disturbance  of  the  said  George  Easterby,  his  executors  or 
administrators ;  without  prejudice,  nevertheless,  to  the  legal  right  of  the  said 
James  Heilbron,  his  executors,  administrators  or  assigns,  to  enforce  tlie  payment 
of  such  rent  as  may  be  due  by  tlie  said  George  Easterby,  liis  executors  or  admin- 
istrators, up  to  the  jieriod  of  such  destruction  by  fire. 

Witness  our  hands  and  seals,  this  sixteenth  day  of  June,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  thirty-six,  and  in  the  sixtieth  year  of  the 
sovereignty  and  independence  of  the  United  States  of  America. 

JAMES  HEILBRON,      [l.  s.] 
GEORGE  EASTERBY,  [l.  s.] 
Sealed  and  delivered  )  H.  A.  De  Sacssube, 


in  the  presence  of  j  S.  Heydexfeldt 


*464] 


310  CHARLESTON,  FEBRUARY,  1840.      APP.  VOL.  I.       [*463 

appurtenant  thereto,  are  completed  and  finished,"  the  said  G.  E.  (the 
plaintiff)  covenanted  to  pay  the  defendant,  as  rent  for  the  whole  of  the 
said  premises,  the  yearly  sum  of  thirteen  hundred  dollars,  "  from  the  time 
of  such  completion,  delivery  or  tender,  during  the  residue  of  the  continu- 
ance of  the  lease,  payable  quarterly."  Another  covenant  of  the  lease 
was  in  these  words  :  "  And  it  is  further  mutually  covenanted  and  agreed 
upon,  by  and  between  the  parties  to  these  presents,  that  the  said  James 
Heilbron  is  to  erect  and  finish,  at  his  own  expense,  the  brick  buildings  on 
Church  street,  appurtenant  thereto,  as  soon  as  the  said  J.  H.  can  get 
the  same  fiuislied  and  completed,  by  the  workmen,  under  the  contracts, 
now  existing,  for  the  completion  thereof;  the  said  buildings  to  be  erected 
and  finished  by  the  said  J.  H.  according  to  his  own  plan  and  directions, 
and  in  such  manner  and  form  of  external  and  internal  arrangements, 
finish,  decoration,  convenience  and  accommodation,  as  he  pleases  and 
deems  expedient,  without  the  interference  or  control  of  the  said  George 
Easterby,  in  any  manner  whatsoever,  and  without  in  any  manner  what- 
soever releasing  the  said  G.  E.  from  the  obligation  of  this  lease  :  And 
ichenever  the  said  J.  H.  declares  the  said  buildings  completed  and 
finished,  *of  which  he  is  to  be  the  sole  and  exclusive  judge,  and 
tenders  the  use  and  occupation  thereof  to  the  said  G.  E.,  he,  the 
said  G.  E.  shall  be  bound  to  receive  and  accept  the  same,  without  objec- 
tion, refusal,  or  pretence,  of  any  kind  whatsoever  ;  and  the  said  G.  E.  shall, 
from  the  time  of  such  tender,  become  liable  and  bound  to  pay  the  said  J. 
H.  the  annual  rent  or  sum  of  one  thousand  three  hundred  dollars,  payable 
quarterly,"  until  the  end  of  the  term.  The  lease  is  dated  the  16th  day  of 
June,  1836. 

On  the  10th  April,  1837,  the  avowant  gave  to  the  plaintifi"  notice  in 
writing,  declaring  the  new  buildings  to  be  finished,  and  tendering  them  to 
him.  The  plaintiff,  without  replying  in  writing  to  the  notice,  subsequently 
occupied  the  premises.  Afterwards  the  avowant  distrained  for  the  ad- 
vanced rent,  and  the  plaintifi"  replevied. 

When  the  avowant  had  closed  his  case,  the  plaintiff  proposed  to  go 
into  evidence,  to  prove  that,  at  the  time  of  the  notice  and  tender  by  the 
avowant,  the  new  buildings  were  not  finished  and  completed;  and  that 

[Cojiy  of  defendant's  letter,  referred  to  in  the  Report  of  his  Honor,  the  presiding 

Judge.  ] 

Charleston,  April  10,  1837. 
To  GRORfiE  Eastekby,  Esq.  : 

Dear  Sir  : — By  the  terms  and  covenants  specified  in  my  lease  to  you,  dated 
IGtli  .Juno,  183(;,  of  the  house  and  lot  at  tlie  corner  of  Church  and  Queen  streets, 
I  ajjroed  to  finish  the  buildings,  then  in  the  pi-ogress  of  erection,  as  soon  as  I 
could  get  tlioiii  completed ;  and  whenever  I  declared  the  buildings  completed  and 
fmislied,  of  which,  by  the  lease,  I  was  to  be  the  sole  and  exclusive  judge,  1  was 
to  t<-iid<;r  tlio  use  and  occupation  thereof  to  you,  and  you  were  bound  to  accept 
and  receive  the  same,  without  objection ;  and  from  tlie  time  of  such  tender,  you 
became  liable  and  bound  to  pay  mo  the  annual  rent  of  fifteen  hundred  dollars  for 
\\it'  pnMiiiscs. 

Tlie  object  of  this  letter  is  to  give  you  notice  that  I  now  declare  the  said  build- 
ings compl(.ti.d  and  liiiislied,  and  tender  them  for  your  use  and  occupation;  and 
fr..iii  tliis  date  I  sliali  e.xpect  you  to  pay  me  the  rent  of  fifteen  hundred  dollai-s, 
by  (inartcrly  jiaynnints,  for  the  ])remiscs. 

You  will  oblige  me  by  an  early  answer  to  this  letter. 

Respectfully, 

JAMES  HEILBRON. 


^464] 


EASTERBY   VS.    HEILBRON.  311 


some  of  tlie  apartments  were  not  in  a  condition  to  be  occupied.  I  con- 
sidered and  held,  that  the  plaintiff  was  estopped  by  his  own  deed  and 
that  he  was  also  concluded  by  the  fact  of  entering  and  taking  possession 
under  it,  from  averring  that  the  buildings  were  unfinished. 

The  plaintiff  also  objected,  that  in  the  notice  of  the  10th  April,  the 
avowant  misstated  the  amount  of  the  subsequent  annual  rent  to  be  paid, 
*and  set  it  down  at  fifteen  hundred  dollars,  instead  of  thirteen  r^: -pr 
hundrcd  dollars.     I  thought  the  error  immaterial,  and  overruled  ^ 
the  objection. 

At  the  commencement  of  the  term,  viz.,  10th  July,  183G,  the  workmen 
in  the  employment  of  the  plaintiff  occupied  a  portion  of  the  demised 
premises,  for  which  the  original  rent  was  stipulated  to  be  paid,  as  a  work- 
shop, and  continued  to  do  so  for  a  considerable  time  afterwards.  Under 
a  notice  of  discount,  the  plaintiff  claimed  rent  for  the  use  and  occupation 
of  the  rooms  thus  occui)ied.  I  exi)lained  to  the  jury  the  circumstances 
from  which  the  law  would  imply  a  contract  to  pay  rent,  in  the  absence  of 
any  express  agreement,  of  which  there  was  no  proof;  and  submitted  to 
them,  whether  the  case  made  furnished  evidence  to  sustain  an  implied 
contract,  or  whether  the  circumstances  afforded  grounds  to  believe  that 
there  was  an  understanding,  that  the  workmen  were  to  be  allowed  to 
remain  in  the  occupation  of  the  room  free  of  rent. 

The  jury  found  for  the  avowant  the  rent  in  arrear,  with  some  deduc- 
tions in  favor  of  the  plaintiff,  under  his  notice  of  discount,  refusing  any 
allowance  for  the  use  and  occupation  of  the  store  room. 

The  plaintiff  appeals  from  the  verdicts,  on  the  following  grounds : 

1.  That  by  the  true  legal,  as  well  as  just  and  equitable,  construction  of  the 
covenants  contained  in  the  lease,  the  obligation  of  the  plaintiff,  to  pay  *the  r*^/-^ 
increased  rent,  was  not  to  attach  until  the  new  buildings  were  actually  L 
finished  and  completed  ;  and  that  the  privilege  reserved  to  the  avowant,  to 
determine  when  the  buildings  were  complete,  did  not  confer  upon  him  an 
arbitrary  right  to  demand  the  increased  rent,  upon  his  declaring  the  buildings 
to  be  complete,  contrary  to  the  fact ;  but  that  the  exercise  of  this  privilege  may 
be  controlled  and  restricted,  by  proof  that  the  buildings  were  not  in  a  condition 
to  be  honestly  tendered.  Wlierefore,  it  is  submitted,  that  his  Honor  should 
not  have  excluded  evidence  offered  to  show  that  in  point  of  fact,  the  buildings 
were  not  finished  and  completed,  nor  even  habitable,  at  the  time  they  were 
tendered  by  the  avowant. 

2.  That  his  Honor  should  not  have  ruled,  that  the  tender  made  by  the 
avowant  was  sufficient  to  render  the  plaintiff  liable  for  the  increased  rent, 
inasmuch  as  the  avowant,  in  making  such  tender,  demanded  a  higher  rent 
than  that  stipulated  in  the  lease;  and  it  is  respectfully  submitted,  that,  by 
accompanying  his  tender  with  a  demand  for  such  higher  rent,  the  avowant 
forfeited  all  benefit  he  might  otherv^'ise  have  been  entitled  to  claim  by  his 
tender. 

3.  That  his  Honor  should  not  have  ruled,  that  whether  the  tender  proved 
was  a  sufficient  tender  of  the  premises  demised  by  the  lease  in  evidence,  was  a 
question  exclusively  for  the  Court,  and  not  for  the  jury. 

4.  That  his  Honor  should  not  have  charged,  that  the  plaintiff,  if  the  buildings 
were  not  finished  and  completed,  when  tendered  to  him,  was  bound  to  have 
refused  to  accept  them,  on  that  ground,  and  that  his  not  doing  so,  was  an 
acquiescence  in  the  sufficiency  and  propriety  of  the  tender,  inasmuch  as  there 
was  no  evidence  of  his  having  accepted  the  buildings,  when  tendered  :  and  his 
Honor  had  moreover  previously  ruled,  that  under  the  lease,  the  plaintiff  was 
bound  by  the  mere  tender ;  and,  therefore,  excluded,  geuerally,  all  evidence 


312  CHARLESTON,  FEBRUARY,  1840.      APP.  VOL.  I.       [*4:66 

going  to  show  that  he  ought  not  to  be  bound  by  the  tender,  as  inadmissible  in 
the  present  actions  :  whereby  the  phviutiif  was  precluded  from  showing,  as  he 
could  have  done,  by  the  most  abundant  proof,  not  only,  that  the  buildings  were 
unfinished  and  uninhabitable,  but  that  he  had  actually  refused  to  accept  them, 
on  that  very  ground,  at  the  time  of  the  tender. 

5.  That  his  Honor  should  not  have  charged,  that  if  the  jury  were  satisfied 
,  that  it  was  the  intention  of  the  parties,  that  the  avowant  should  ^occupy 
-■  a  part  of  the  demised  premises,  as  store  rooms,  A:c..  during  the  progress 

of  the  new  buildings,  without  rent,  they  might  refuse  to  allow  the  plaintiff  rent 
for  the  use  and  occupation  of  such  part  of  the  premises,  by  the  avowant ; 
inasmuch  as  there  was  no  such  reservation,  nor  any  expression,  or  intimation,  of 
such  an  intention  in  the  lease,  nor,  indeed,  any  parol  evidence  of  such  an  agree- 
ment or  understanding  on  the  part  of  the  plaintiff. 

6.  That  under  the  evidence,  the  plaintiff  was  entitled  to  rent  for  the  use  and 
occupation  by  the  avowant,  of  part  of  the  demised  premises,  the  possession  of 
which  was  withheld  by  the  avowant,  for  a  period  of  eleven  mouths,  subsequent 
to  the  commencement  of  the  lease  ;  and  that  the  verdict  was  erroneous,  in  not 
discounting  such  rent  from  the  amount  of  the  rent  claimed  by  the  avowant,  for 
the  entire  premises. 

7.  That  the  verdict  is,  in  other  respects,  contrary  to  law  and  the  evidence. 

Appeal  determined  at  Charleston,  February,  1840. 

Curia,  per  Earle,  J.  The  general  rule  for  the  construction  of  cove- 
nants is  well  enough  understood  ;  the  intention  of  the  parties,  when  it  can 
be  ascertained  from  the  instrument,  must  govern  ;  and  to  come  at  this,  all 
the  parts  of  it  must  be  considered  together.  Ou  a  fair  construction  of 
the  deed  in  question,  we  cannot  doubt,  that  the  object  of  the  parties  was 
to  avoid  the  very  dispute  which  has  arisen.  It  would  seem  almost  impos- 
sible for  language  to  be  more  explicit ;  and  either  the  covenant  upon 
which  the  question  arises,  means  what  was  supposed  in  the  Court  below, 
or  it  must  be  struck  out  as  meaning  nothing.  It  may  have  been  folly  in 
the  tenant,  to  bind  himself  to  accept  the  tenements  and  to  pay  the  in- 
creased rent,  whenever  the  landlord  gave  him  notice  ;  but  that  he  has 
bound  himself  to  that  extent,  cannot  be  doubted  by  any  one  who  will  read 
the  instrument.  To  allow  the  tenant  under  such  a  covenant  to  offer  proof 
that  the  houses  were  unfinished,  would  be  to  repeal  the  agreement  alto- 
gether ;(a)  and  that  we  have  no  right  to  do.  If  the  houses  were  unfin- 
ished, and  he  sustained  any  damage  from  that  cause,  he  has  his  right  of 
action  on  the  covenant  of  the  landlord  to  finish ;  and  this  he  may  have 
brought  at  the  same  time  his  goods  were  distrained.  If  men  will  enter 
into  covenants  which  involve  tliera  in  trouble,  the  Court  cannot  relieve 
them  ;  tlioy  must  abide  the  consequences. 

It  is  i)alpable  that  the  covenants  are  independent,  and  each  must 
rcfiort  to  his  own  remedy.  There  is  no  ambiguity,  and  they  cannot  be 
explained  away. 

On  the  otlier  point  raised,  the  Court  does  not  perceive  any  error  in  the 
instructions  to  the  jury.  If  the  judge  is  allowed  to  say  any  thing  at  all, 
he  nnist  be  permitted  to  give  his  advice,  to  suggest  such  considerations 
*4G8l  ""  *^^'"  ^"'^'''^'  ^''^^  .)"'T  fo  (-'ome  to  a  correct  conclusion.  If  the 
-•  jmlge  were  to  be  muzzled,  and  not  permitted  to  say  any  thing  on 
the  facts,  ilic  complaints  against  juries  would  be  louder  and  more  fre- 
quent tlian  they  are.  (i)     Here,  such  circumstances  were  suggested  to 

(ri)  Sup.  V.U.      An. 

(/<)  fciee  2  McM.  425  ;  1  Mills'  C.  R.  227  ;  8  Rich.  140.     An. 


*468]  EAGAN  VS.   GANTT.  313 

the  jury,  as  might  induce  them  to  come  to  a  particular  conclusion.     It 
was  for  them  to  decide,  and  they  were  not  precluded  from  acceding. 
The  motion  to  set  aside  the  verdict  is  refused. 

Gantt,  Richardson,  O'Neall  and  Butler,  JJ.,  concurred. 

Bailey  and  Brewster,  for  the  motion.     H.  A.  De  Saussure,  contra. 


James  Eagan  vs.  Israel  Gantt,  Sen'r. 

On  the  trial  of  an  action  for  slander,  the  defendant  will  not  be  permitted,  under 
the  plea  of  the  general  issue,  to  prove  the  truth  of  the  words  spoken,  or  any 
fact  which  will  go  to  criminate  the  plaintiff.  The  plea  of  justification,  iji  order 
to  prove  the  truth  of  the  slander,  must  always  be  pleaded. 

Before  Richardson,  J.,  at  Lexington,  September  Term,  1835. 

This  was  an  action  of  slander,  for  charging  the  plaintiff  with  perjury, 
by  swearing  to  a  lie,  in  the  course  of  evidence  given  by  him,  in  a  case  of 
trespass,  brought  by  Steedman  vs.  Gantt.  The  evidence  fully  supported 
the  case,  with  the  necessary  colloquium,  &c.  The  plea  was  the  general 
issue  "not  guilty  ;'^  and  the  defendant  introduced  one  Wm.  Williams,  who 
was  permitted  by  the  Court  (though  objected  to  by  Eagan's  counsel,)  to 
prove  the  matter  that  Eagan  had  sworn  to,  upon  the  former  trial,  and 
charged  to  be  false  by  the  defendant,  Gantt.  Williams  related  "  that 
Eagan  said  that  the  land,"  (then  in  question,)  "was  pretty  nigh  wore  oat, 
and  that  Gantt  had  cultivated  the  land  seven  or  eight  years."  Gantt's 
counsel  then  offered  to  ast  the  following  questions,  which  were  objected  to : 

"  Was  the  land  pretty  nigh  worn  out  ?  Did  Gantt  cultivate  the  land 
seven  or  eight  years  ?     Was  the  evidence  of  Eagan  true,  or  not  ?" 

The  questions  were  overruled,  as  wholly  incompetent,  without  the  plea 
of  justitication.  But  all  questions  and  matter  short  of  direct  evidence  of 
Eagan's  perjury,  when  formerly  sworn,  were  allowed.  Defendant's  coun- 
sel contended,  that  since  the  case  of  Seed,  &c.,  there  was  no  necessity  for 
the  *plea  of  justification  in  any  case.  The  case  was  given  out  to  r^igo 
the  jury  upon  the  facts,  and  they  returned  a  verdict  of  three  hun-  ^ 
dred  dollars  for  plaintiff. 

The  defendant  appeals,  on  the  grounds : 

1st.  Because  the  defendant  offered  to  prove  by  several  witnesses,  that  Eagan 
swore  on  the  trial  of  7.  <!;  A.  Steedman  vs.  Israel  Gantt,  in  an  action  of  trespass 
to  try  titles,  and  to  recover  damages,  that  Gantt  had  occupied  and  cultivated 
the  land  for  eight  years,  and  that  the  land  was  nearly  worn  out,  and  Eagan's 
testimony  on  these  points  was  not  true.  The  words  alleged  in  the  declaration, 
were  spoken  in  allusion  to  Eagan's  testimony  in  this  case,  but  the  Judge 
decided  that  it  was  incompetent  evidence,  to  contradict  what  Eagan  swore  in 
that  case,  unless  the  defendant  had  pleaded  justification. 

'2d.  Because  it  was  competent,  under  the  plea  of  the  general  issue,  to  give 
circumstances  in  evidence,  (to  rebut  the  idea  of  malice  on  the  part  of  the 
defendant,)  that  Eagan's  testimony  was  inconsistent  with  the  facts  ;  and  that 
the  circumstances  proposed  to  be  proved,  (and  which  were  excluded  by  the 
Court,)  would  have  gone  to  establish  what  was  not  true,  and  that  his  evidence 


3U  COLUMBIA,    FALL    TERM,    1835.       APP.  VOL    I.        [*469 

was  erroneous ;  and  the  circumstances  ought  to  have  been  permitted  to  have 
gone  to  the  jury  in  niititration  of  damages. 

3d.  Because  all  the  circumstances  of  Eagan  s  testimony,  and  the  facts  con- 
nected with  the  case,  were  competent,  on  the  part  of  the  defendant,  to  prove 
the  provocation — the  probability  of  the  charge,  and  the  suspicion  the  plaintiff's 
evidence  was  calculated  t-o  create. 

4th.  Because  the  verdict  was,  in  other  respects,  contrary  to  law  and  evidence. 

Curia,  per  Richardson,  J.  I  am  directed  to  announce  the  decision 
of  the  Appeal  Court.  The  Coitrt  have  to  inquire,  whether  the  questions, 
put  by  the  defendant's  counsel,  and  overruled  by  the  presiding  judge, 
were  offered  for  the  purpose  of  proving  that  Eagan  had  sworn  falsely,  or 
for  the  purpose  of  extenuating  the  slander,  and  thereby  diminishing  the 
offence  of  Gantt,  without  criminating  Eagan.  The  former  would  require 
the  plea  of  justification,  in  form  ;  the  latter,  no  more  than  the  general 
issue — '"not  guilty." 

In  practice,  it  is  often  difficult  to  distinguish  between  matter  of  justifi- 
cation, and  circumstances  which  go  to  extenuate  the  slander  and  lessen 
the  damages,  yet  leave  the  plaintiff  uucriniinated  ;  but,  the  moment  the 
distinction  is  seen,  the  rule  of  pleading  is  unquestionable. 

In  the  case  before  us,  it  was  not  denied  on  the  circuit,  that  the  object 
was  to  justify  the  defendant.  The  drift  of  the  questions  offered  is  indeed 
plain,  from  the  third  question,  i.  e.  "  was  the  evidence  of  Eagan  true  or 
not  ?"  This  question  was  urged  upon  the  Court,  by  the  same  argument 
^i'-m     *\^'''ich  was  offered  to  justify  the  first  and  second  questions.    The 

'  -J  proposition  of  the  defendant's  counsel,  at  the  trial,  was,  that  there 
is  no  legal  necessity  to  plead  a  justitication,  in  order  to  make  it  compe- 
tent to  prove  the  truth  of  the  slander.  It  is  true,  that  the  argument  is 
immaterial  to  the  merits  of  the  question.  But  it  was  this  proposition 
that  was  rejected  by  tlie  Court,  as  a  mistake  in  law.  And  such  questions 
as  were  predicated  upon  it,  were  overruled,  as  altogether  incompetent, 
without  the  plea.  Bat  all  questions  searching  for  matter  of  excuse  or 
extenuation,  and  short  of  evidence  going  to  criuiinate  Eagan,  were 
allowed  by  the  Court.  The  argument  might  rest  here,  but  as  the  facts 
of  the  case  illustrate  the  justice  and  necessity  of  preserving  the  plea  of 
justification,  for  its  proper  office — to  prevent  surprise — I  will  notice  them. 

The  plaintiff  first  proved  the  slanderous  charge  of  perjury,  as  made  by 
the  defendant,  in  reference  to  his  former  evidence,  given  in  a  certain  case. 
The  defendant  then  introduced  William  Williams,  who  swore  that  Eagan 
when  examined  at  the  trial,  deposed  that  "the  land  was  pretty  nigh  worn 
out;  and  tliat  "  Gantt  had  cultivated  it  seven  or  eight  years."  So  far, 
the  evidence  was  harmless ;  and  although  objected  to  was  permitted,  as 
the  ]>ossiljle  foundation  of  some  explanation  or  extenuation,  yet  to  come. 
Upon  tliis  evidence,  the  questions  rejected  were  predicated.  "  Was  the 
land  |»retty  nigh  worn  out  ?"  "  Did  Gantt  cultivate  the  land  seven  or 
eight  years  ?"(«)  And  lastly,  as  if  to  demonstrate  that  the  crimination 
of  Eagan  was  aimed  at,  the  two  former  questions  were  reiterated  in  the 
third.  "  Was  the  testimony  of  Eagan  true  or  not  ?".  In  this  third  ques- 
tion, wo  liavc  the  precise  gist  of  the  inquiry  before  the  Court,  i.  e.  Was 
the  oltject  to  criminate  Eagan  ?  Now  I  ask,  how  was  it  possible  for 
Engan  to  be  prepared  to  resist  the  evident  crimination  intended  to  be 
(«)  See  2  Sp.  1.     An. 


^470] 


EAGAN    VS.    GANTT.  315 


brought  out  by  such  questions,  when  placed  in  such  a  connection  with 
the  evidence  just  given  by  Williams  ?  Unless  the  plaintiff  had  been  put 
on  his  guard,  by  a  plea  that  the  charge  of  perjury  would  be  justified  ? 
Without  such  a  plea,  he  ninst  have  been  surprised  to  find  the  tables  thus 
turned  upon  him.  And  such  surprise  attests  the  necessity  of  requiring, 
that  the  plea  should  have  been  filed  on  the  part  of  Gantt.  The  plea  of 
justification  is  not  abolished.  Its  place  is  found,  whenever  the  intention 
is  to  criminate  the  ])laintiff,  by  proving  the  slanderous  words  true. 

The  Court  therefore  concur  with  the  presiding  judge  ;  and  the  motion 
is  refused. 

Johnston,  Evans,  Johnson,  and  Gantt,  concurred. 

Butler,  J.,  dissenting,  I  dissent  from  the  opinion  of  the  Court  in 
this  case.  The  defendant  did  not  wish  to  assume  the  perilous  position 
of  deliberately  imputing  perjury  to  the  plaintiff  by  filing  a  plea  of  justifi- 
cation, which  could  alone  be  supported  by  proof  of  a  perjury. — That  is, 
that  ^plaintiff  had  taken  an  oath,  in  a  judicial  trial,  to  a  fact  r-^  _, 
material  to  the  issue,  and  which  was  deliberately  and  wilfully  false.  L 
When  the  defendant  made  the  charge,  he  may  not  have  been  acquainted 
with  all  the  legal  ingredients  of  the  crime  imputed  to  the  plaintiff,  and  at 
the  trial,  he  may  not  have  been  able  or  willing  to  prove  all  that  would 
be  required  by  the  plea  of  justification.  But  does  it  follow  that  he  should 
have  been  deprived,  for  the  want  of  such  plea,  of  an  opportunity  of 
showing,  that  defendant  had  been  culjjably  negligent  in  making  his 
estimates  before  he  was  sworn  on  a  former  trial  ? 

The  defendant  did  not  offer  to  prove  that  plaintiff  had  committed  a 
perjury,  he  offered  to  show  that  plaintiff  had  said  in  his  oath  what  was 
in  fact  not  true ;  that  is,  the  land  in  question  was  not  near  worn  out,  and 
that  Gantt  had  not  cultivated  it  seven  or  eight  years  ;  and  in  doing  this 
it  would  not  have  followed  that  plaintiff  had  been  guilty  of  a  wilful  false- 
hood. If  defendant  had  been  permitted  to  introduce  his  evidence,  he 
might  have  shown  that  the  land  was  somewhat  used,  but  not  nearly  worn 
out,  and  that  Gantt  had  cultivated  it  for  four  or  five  years,  but  not  seven 
or  eight ;  or  he  might  have  shown  that  plaintiff  had  sworn  with  a  reck- 
lessness and  ignorance  of  the  true  facts,  which  was  culpal^le  in  a  high 
degree,  but  not  legally  criminal ;  that  he  had  spoken  "unadvisedly  with 
his  lips,"  where  it  had  been  in  his  power  to  have  informed  himself,  and 
to  have  given  correct  information  on  the  matter  in  controversy.  Should 
a  party  be  deprived  of  showing  these  things,  because  he  cannot  make  out 
a  crime  against  the  plaintiff  to  justify  the  words  spoken  ?  Cannot  a  party 
excuse  himself  by  showing  something  by  way  of  extenuation,  without 
being  driven  to  a  plea  which  would  impose  on  him  the  necessity  of  con- 
victing plaintiff"  of  a  technical  crime  ?  If  a  defendant  is  deprived  of  this 
evidence,  this  is  his  situation  ;  he  cannot  plead  justification,  because  he 
has  not  evidence  enough  to  support  it,  and  if  he  does  not  justify,  he  is 
deprived  of  all  evidence  to  excuse  himself,  by  showing  that  plaintiff  had 
committed  a  mistake,  or  had  been  guilty  of  great  negligence  in  making 
statements  giving  information  to  the  Court.  The  plain tilf  in  his  evidence 
on  a  former  trial  might  have  testified  to  what  was  not  true,  without  its 
being  criminally  false,  so  as  to  fix  on  him  the  imputation  of  perjury.  The 
extent  of  the  evidence  offered  by  defendant  and  rejected  by  the  Court, 


316  COLUMBIA,    FALL    TEKM,    1837.      APP.  YOL.  I.       [*471 

was  to  show  that  plaintiff  had  not  testified  truly,  as  to  the  degree  of  wear 
and  deterioration  of  the  hind,  and  the  time  it  was  occupied.  In  giving 
his  evidence,  the  plaintiff  may  have  made  a  mistake,  or  he  may  have  been 
culimbly  negligent ;  and  how  could  defendant  show  either  without  the 
evidence  which  was  excluded  ?  In  what  way  could  he  have  availed  him- 
self of  the  benefit  of  this  evidence  ?  If  it  could  have  been  of  any  service 
to  him,  he  has  been  precluded  from  it  unjustly  by  the  rule  laid  down.  I 
have  always  understood  the  rule  to  be,  that  a  defendant  in  slander  could 
introduce  any  evidence  under  the  general  issue,  to  reduce  the  damages  by 
^g-,  showing  that  he  had  grounds  for  what  he  had  *said  of  the  plaintiff, 
-'  and  that  he  could  show  any  grounds  not  amounting  to  the  crime 
imputed  ;  but  where  he  contends  for  an  entire  verdict,  he  must  show  that 
he  did  not  use  the  offensive  words  ;  or  if  he  intends  to  maintain  the  truth 
of  them  to  the  extent  of  their  legal  import,  he  must  do  so  under  a  plea 
justification.  I  will  suppose  a  case,  that  A.  said  of  B.  that  B.  was 
guilty  of  larceny  ;  an  action  was  brought ;  A.  could  show  that  B.  had 
traded  with  a  negro,  under  suspicious  circumstances,  showing  that  he 
had  traded  for  stolen  goods  ;  the  charge  would  not  be  supported  by  the 
proof  under  plea  of  justification ;  but  should  the  defendant,  on  that 
account,  be  deprived  of  the  testimony  under  the  general  issue  to  reduce 
the  damages  ?  Any  thing  less  than  the  crime  imputed  should  be  given  in 
evidence,  under  the  general  issue  ;  but  where  evidence  is  offered  to  prove 
the  crime  charged,  it  should  be  a  plea  of  justification,  to  authorize  its 
admission. 

O'Xeall,  Harper  and  De  Saussure,  concurred. 

Caldicell  and  Summer,  for  the  motion.     Bauskett  and  Cavghman, 
contra. 

See  10  Ricli.  417  ;  1  N.  &  McC.  268.     An. 


The  State  vs.  Horatio  Blease. 

It  is  not  necessary,  in  an  indictment  under  the  Act  of  1754,  (P.  L.  335-6,)  for 
aiding  a  slave  in  running  away  and  departing  from  his  master's  employment, 
to  set  out  and  aver  the  means  used  in  aiding  the  slave  to  run  away.  It  is  suf- 
ficient for  all  purj)osos  if  the  indictment  charge  the  offence  in  the  words  of  the 
Act.  It  must  definitely  and  directly  charge  the  defendant  with  aiding  the  slave 
in  running  away,  so  that  his  master  has  been  deprived  of  his  services ;  the 
name  of  the  slave,  and  the  name  of  his  master;  the  time  and  place,  &c. 

Before  O'Neall,  J  ,  at  Edgefield,  Spring  Term,  1S3T. 

The  prisoner  was  indicted  under  the  3d  clause  of  the  1st  section  of  the 
Act  of  17.54,  (P.  L.  33.5-0, )(rt)  for  aiding  a  slave  in  running  away  and 
dc|>arting  from  his  master's  service.  The'indictinent  charged  the  offence 
in  the  words  of  the  Act,  but  did  not  set  out  the  means  employed  by  the 
defendant  in  aiding  the  slave  to  run  away.  It  was  proved  that  a  slave, 
the  projjcrty  of  Francis  Bettis,  whose  name  was  Jim,  ran  away  from  his 

(a)  7  Stat.  426.     An. 


*472J 


STATE    VS.    BLEASE.  317 


master's  service,  on  the  night  of  the  24th  of  December,  1836  ;  on  the 
26th  of 'December,  1836,  he  was  found  in  Schrivon  County,  State  r^i-ro 
of  Georgia,  and  a  paper  was  produced  l)y  him  as  a  pat^s,  and  '- 
taken  from  his  possession,  of  whicli  the  following  is  (I  believe)  a  literal 
copy.  "  This  is  to  show  my  boy  Jesse  a  leaf  to  hire  is  own  time  for  next 
year."     signed,  "  William  Uarnes."  • 

On  the  24th  of  December,  1836,  Jim  was  seen  at  the  house  of  the 
prisoner,  in  the  suburbs  of  the  village  of  Edgefield,  in  company  with  the 
prisoner,  nailing  boards  upon  his  pailings.  The  paper  found  in  posses- 
sion of  the  runaway,  was  proved,  by  A.  B.  Addison,  Esq.,  to  be  in  the 
handwriting  of  the  prisoner ;  he  had  seen  him  write  twice  ;  of  the  first 
occasion  on  which  he  had  seen  him  write,  he  said  heJiad  no  recollection, 
at  the  time  the  prisoner  was  arrested  ;  and,  therefore,  he  requested  him,  in 
his  presence,  to  write  his  name,  which  he  did,  and  it  was  from  his  knowledge 
thus  acquired,  that  he  thought  the  paper  was  the  handwriting  of  the 
prisoner;  he  was  shown  a  paper,  which  afterwards  was  proved  to  have 
been  written  by  Thomas  Blease,  the  brother  of  the  prisoner,  and  said  that 
it  looked  like  the  writing  of  the  prisoner,  though  not  so  much  as  the 
paper  taken  from  the  possession  of  the  runaway.  He  said  that  the 
prisoner's  pronunciation  was  very  like  the  spelling  of  the  words  in 
the  paper;  he  drops  the  "h"in  some  words,  and  sounds  it  in  others, 
to  which  it  does  not  belong.  An  order,  admitted  by  the  prisoner  to  be 
his  genuine  handwriting,  was  offered  by  the  State,  and  admitted  by  the 
Court,  notwithstanding  it  was  objected  to  by  the  counsel  for  the  prisoner. 

The  rule  on  this  subject  is  stated  by  the  Court  of  Appeals  in  the  case 
of  Bowman  vs.  Plunkett,  (2  McC.  518, )(a)  to  be,  that  where  there  has 
been  jwimn  facie  proof  of  handwriting,  and  it  is  still  a  doubtful  cpiestion, 
genuine  writing  of  the  party  may  be  submitted  to  the  Court  and  jury,  to 
enable  them  to  decide,  by  comparison,  whether  the  writing  produced  be 
that  of  the  party.  This  rule  was  laid  down  in  a  civil  cause,  but  I  am 
not  able  to  discover  why  it  is  not  a  proper  rule  in  a  criminal  cause.  In 
one,  as  well  as  the  other,  it  is  intended  to  answer  a  question  of  fact  by 
the  best  means  in  our  power.  The  prisoner  had  resided  at  Edgefield  for 
a  few  years,  and  during  that  time  had  been  industrious  and  correct  in 
his  dealings ;  and  the  witnesses  all  agreed,  that  they  had  heard  nothing 
against  him  until  this  ati'air  occurred — and,  therefore,  said  he  was  of  good 
character.  It  was  objected,  on  the  part  of  the  prisoner,  that  he  could 
not  be  guilty  under  the  Act  of  1*754,  inasmuch  as  the  Legislature,  at  the 
last  session,  had  provided  a  different  punishment  for  giving  a  ticket  or 
permit  to  a  slave.  The  Act  of  1836, (&)  was  not  before  me,  and  could  not 
then  be  obtained,  as  the  Acts  (from  the  f^ult  of  the  State  Printer,  or  the 
Secretary  of  Slate)  had  not  been  sent  to  the  different  districts  for  distri- 
bution. I  had,  therefore,  to  judge  of  the  law  from  the  statement  which 
Mr.  Speaker  Wardlaw  was  able  to  give  from  memory;  and  I  am  grati- 
fied to  find,  on  meeting  with  the  Act  at  the  last  Court  on  my  circuit,  (10th 
Aiiril,  1837,)  within  twelve  miles  *of  the  capital,  that  no  error  r*^tji 
was  committed  in  this  behalf.  It  provides,  "That  if  any  person  '- 
shall  give  a  ticket  or  written  permit  to  any  slave,  the  property,  or  being 
under  the  charge  of  another,  without  the  consent  or  against  the  will  of 

(«)  Sup.  129  ;  3  Rich.  3b3.     An.  (b)  6  Stat.  552.     An. 


318  COLUMBIA,    FALL    TERM,    1837.       APP.  VOL.  I.        [*-474 

the  owner  or  other  person  having  charge  of  such  slave,  authorizing 
such  shive  to  be  absent,  or  to  deal,  trade  or  traffic,  such  person  shall  be 
liable  to  be  indicted,  and  on  conviction,  be  punished  by  fine,  not  exceed- 
ing one  thousand  dollars,  and  be  imprisoned  not  exceeding  twelve 
months;  the  entire  tine  thus  imposed,  to  be  given  to  the  informer."  I 
thought,  and  so' instructed  the  jury,  that  this  Act  provided  for  a  different 
oifence  from  that  before  the  Court.  As  to  the  first  branch  of  the  Act, 
it  was  nothing  more  than  a  re-enactment  of  the  4th  section  of  the  Act  of 
1740,  with  an  increase  of  the  penalty.  Construing  it  by  that,  or  as  in 
Xiari  materia,  it  was  plain  that  it  was  intended  to  punish  the  giving  to  a 
slave  a  pass  for  occasional  absence,  unconnected  with  the  fact  of  running 
away.  In  this  case,  under  the  Act  of  1754,  it  was  necessary  that  the 
pass  should  have  been  delivered  to  the  slave,  to  aid  him  in  running  away 
and  departing  from  his  master's  service.  I  thought,  and  so  instructed 
the  jury,  that  if  the  paper  found  in  the  possession  of  the  slave,  was 
delivered  to  him  by  the  prisoner,  with  the  intent  to  aid  him  in  running 
away,  that  then  the  prisoner  was  liable  to  the  penalty  of  the  Act  of  1754. 
In  deciding  upon  the  prisoner's  guilt,  I  told  them  that  every  thing 
depended  upon  the  fact,  whether  tlie  paper  found  in  the  possession  of 
the  slave,  was  the  handwriting  of  the  prisoner;  if  it  was,  from  that  fact, 
and  the  further  fact  that  the  slave,  just  before  running  away,  was  seen  in 
the  company  and  employment  of  the  prisoner,  they  might  presume  he 
deli\X!red  the  i)apcr  to  the  slave  to  enable  him  to  run  away.  In  deciding 
upon  the  handwriting,  I  told  them  that  piHma  facie  proof  had  been 
made,  which  might  be  rebutted  by  the  vv'ant  of  opportunity,  on  the  part 
of  the  witness,  to  be  familiarly  acquainted  with  his  handwriting;  the  fact 
that  he  doubted  whether  the  paper  written  by  Thomas  Bleasc,  was  not 
written  by  the  prisoner;  a  comi)arison  with  that  pai)er,  or  the  order 
admitted  to  be  genuine.  So  tlu;  i)roof  might  be  corroborated  by  the 
skill  of  the  witness  in  judging  of  handvvriting,  and  their  own  opinion,  on 
comparison,  of  the  identity  of  the  handvvriting  of  the  genuine  order,  and 
the  ))aper  found  in  the  possession  of  the  slave.  Though  it  appeared  to 
me,  I  said  to  the  jury,  that  there  was  more  similitude  of  the  paper  found 
in  the  possession  of  the  slave,  to  the  paper  written  by  Thomas  Blcase, 
than  to  the  order  written  by  the  prisoner.  But  I  told  them,  the  question 
of  handwriting  was  one  of  fact  merely,  and  for  them  alone.  I  explained 
to  the  jury,  that  if  they  entertained  a  reasonable  doubt,  upon  the  facts 
proved,  of  the  guilt  of  the  prisoner,  they  ought  to  acquit  him.  The  jury 
found  the  prisoner  guilty;  and  I  cannot  say  that  I  am  dissatisfied  with  it. 

*'l'ije  prisoner  appeals,  and  moves  in  arrest  of  judgment  and  for  a  new 
on  the  grounds  of  misdirection  bv  the  Court,  and  error  in  law. 


'J   trial, 


Appeal  determined  at  Columbia,  Tall  Term,  1837. 

Curia,  per  Butleii,  J.  The  ground  taken  in  arrest  of  judgment, 
cannot  be  sustained,  according  to  the  view  which  has  been  taken  of  it  by 
a  majority  of  the  court.  The  defendant  is  indicted  in  the  words  of  the 
statute  which  created  and  delincs  the  oifence  with  which  he  is  charged. 
He  is  definitely  and  directly  charged  with  aiding  a  slave  in  running 
away,  so  that  his  master  was  deprived  of  his  service.  The  name  of  the 
slave  and  the  name  of  his  master  ;  the  time,  plar.'e  and  fact  of  rendering 


*475]  STATE    VS.    BLEASE.  319 

the  aid,  ami  the  purpose  for  \vliic]i  it  was  rciulcrcd,  and  its  accomplisli- 
meiit,  are  all  stated.  Those  arc  the  facts  and  circumstances  which 
constitute  the  olfcnce;  and  of  which  the  defendant  had  a  right  to  be 
informed  for  every  legal  purpose.  Tiiat  is,  that  he  might  be  enabled  to 
judge,  whether  or  not,  he  was  charged  with  an  iiidictal»le  offence,  and  to 
enable  him  to  plead  a  conviction  or  acquittal  on  this  indictment,  in  bar 
of  another  indictment  for  the  same  offence  ;  and  also  to  enable  the  court 
to  ]ironounce  a  certain  judgment  on  it. 

The  means  which  a  defendant  may  use  in  the  commission  of  such  a 
crime,  might  be  innocent  in  themselves,  separately  considered,  and  as 
various  as  the  device  and  craft  of  men  could  suggest.  It  would  have 
been  no  criuie  for  the  negro,  Jim,  to  have  rode  the  defendant's  horse  ;  for 
defendant  to  have  given  him  money  and  a  ticket  to  go  on  the  railroad, 
or  a  letter  to  a  captain  of  a  vessel.  Each  one  of  these  things  may  be 
done  innocently;  and  they  become  criminal,  only  when  they  are  used  as 
means  to  effect  a  criminal  purpose.  If  they  should  enable  a  slave  to  run 
away,  so  tliat  his  master  loses  his  service,  by  the  design  of  the  party  who 
employed  them.,  a  crime  would  be  perpetrated,  by  the  end  which  they  had 
effected.  It  is  the  end  accomplished,  and  not  the  means  employed,  that 
constitute  the  offence.  I  can  perceive  no  more  reason  for  setting  out 
in  an  indictment,  the  means  used  in  aiding  a  slave  to  run  away,  than  to 
set  them  out  in  an  indictment  for  stealing  and  inveigling  a  slave.  In  the 
two  latter  cases  it  never  has  been  thought  necessary.  These  offences  are 
created  and  enumerated  in  one  clause  of  the  same  statute,  the  statute 
under  which  the  defendant  is  indicted.  It  would  be  as  impracticable,  aud 
as  little  necessary  to  state  the  means  used  in  the  one  as  the  other;  some 
of  the  same  means  might  be  used  in  all  of  them.  It  might  be  a  very 
effectual  means  of  stealing  or  enveigling  a  slave,  to  give  him  a  ticket. 
The  purpose  for  which  it  might  be  given  would  cliaracterize  the  offence. 
A  case  can  be  put,  in  which  it  would  be  impossible  to  set  out  the  means 
employed  in  aiding  a  slave  to  run  away  from  his  master,  and  yet,  a 
defendant  would  be  clearly  guilty.  Suppose  a  party  were  to  admit, 
opeidy  and  without  *disguise,  deeming  it  a  merit  rather  than  a  r-j^.-jn 
crime,  that  he  had  procured  A.  B.'s  slave  to  run  away,  and  that  he  '- 
had  furnished  him  the  means  to  make  his  escape  to  Boston,  could  he  not 
be  convicted  by  his  own  confession,  upon  an  indictment,  charging  his 
crime  in  the  words  of  the  statute,  without  specifying  any  means  ?  The 
very  attempt  to  set  out  the  means  might,  and  would  frequently,  defeat 
the  indictment;  for  nine  times  in  ten,  the  evidence  would  show  different 
means  from  those  set  out ;  and  it  is  a  settled  rule,  that  the  means  must 
be  proved  as  they  are  set  out,  when  it  is  necessary  to  set  them  out  in  an 
indictment.  There  is  a  class  of  cases  in  which  it  is  necessary  to  set  out 
the  means  by  which  the  offence  is  committed.  When  the  particular 
means  which  are  used  to  efl'ect  a  criminal  object,  are  essential  to  consti- 
tute the  offence,  it  is  a  general  rule,  that  such  means  must  be  described 
on  the  record,  to  enable  the  court  to  see  that  the  jury  have  founded  their 
conclusion  on  proper  premises.  A  single  instance  will  illustrate  this 
position.  In  an  indictment  for  obtaining  money  by  false  pretences,  it  is 
necessary  to  specify  the  pretences,  to  see  whether  they  fall  within  the 
purview  of  the  statutes.  It  is  necessary,  because  some  pretences  are  not 
enumerated  in  the  Statutes  of  Henry  the  8th  and  George  the  2d.     If 


320  COLUMBIA,    FALL   TERM,    1837.      APP.  VOL.  L        [*476 

there  were  a  statute  against  canying  bowie  knives  and  other  deadly 
weapons,  enumerated,  an  indictment  under  it  should  specify  the  weapons 
prohibited.  In  an  indictment  for  libel  or  swindling,  the  libellous  pub- 
lication and  the  fraudulent  practices  should  be  set  out,  because  they 
constitute  the  offence.  And  so  of  other  offences  of  the  like  kind.  But 
not  so  where  the  means  are  indifferent,  and  the  end  effected  by  them  is 
the  offence.  Adjudicated  cases  will  only  serve  to  illustrate  these  posi- 
tions and  distinctions.  Telley^s  case,  reported  in  Leach,  is  nearer  like 
the  one  under  consideration,  than  any  other  quoted.  The  defendant  was 
indicted  under  the  statute  of  George  the  2d,  against  aiding  and  assisting 
of  persons  to  attempt  to  escape  out  of  lawful  prisons.  The  indictment 
stated,  that  defendants  were  aiding  one  Jodell  Idswell  to  make  an  escape, 
then  and  there  being  a  prisoner,  &c.  Objections  were  taken  to  the 
indictment,  on  a  motion  in  arrest  of  judgment;  but  it  was  not  contended 
that  the  means  used  should  have  been  set  out ;  thus  conceding  that  it 
was  unnecessary;  as  far  at  least,  as  it  could  be  negatively  conceded.  I 
think  it  far  from  being  an  unimportant  circumstance,  that  the  solicitor 
has  pursued  the  form  prescribed  in  Grimke's  Justice.  The  precedent 
was  taken,  no  doubt,  from  some  form  of  indictment  made  out  by  some 
.skilful  and  experienced  Attorney  General  living  in  Charleston ;  for  it  is 
known  that  Judge  Grimke's  precedents  were  collected  in  this  way.  In 
the  case  of  the  State  vs.  GantreU,'a)  decided  in  1834,  Judge  O'Neall 
has  laid  down,  very  correctl}',  the  distinction  where  the  words  of  the 
statute  should  be  pursued,  and  where  the  offence  should  be  otherwise 
more  fully  and  particularly  described. 

:^  ,HH-i  *Iu  the  first  ground  taken  for  a  new  trial,  it  is  contended,  that 
-J  if  the  defendant  was  guilty  of  any  offence,  it  was  that  described 
in  the  Act  of  1836.  By  this  Act,  it  is  made  a  misdemeanor  to  give 
another's  slave  a  ticket  without  authority  to  do  so.  But  because  it  may 
be  a  misdemeanor,  in  itself,  to  give  a  slave  such  a  ticket  as  that  contem- 
plated in  the  Act  of  1836,  it  does  not  follow  that  it  may  not  also  be  a 
means  used  in  tjie  commission  of  a  crime.  If  it  be  given  with  a  view  to 
aid  a  slave  to  run  away,  in  defiance  of  his  master's  authority,  and  not  to 
return,  so  that  the  master  may  lose  his  property  in  the  slave,  it  must  be 
regarded  as  a  means  to  commit  a  crime  under  the  Act  of  1754.  If,  how- 
ever, it  be  given  to  a  slave,  by  one  not  having  authority,  to  enable  him 
to  be  absent,  but  in  contemplation  of  his  return  to  his  master's  authority ; 
or  to  enable  a  slave  to  go,  and  from  place  to  place,  to  trade  or  attend  to 
some  business  of  the  ])er6on  giving  the  ticket,  it  would  be  regarded  as  a 
misdemeanor,  under  the  Act  of  1836.(6)  In  the  Act  of  1140,  the  form  of  a 
ticket  to  be  given  to  a  slave  is  prescribed  ;  and  in  a  subsequent  clause,  a 
fine  is  im))osed  on  any  one  who  shall  give  such  a  ticket  without  authority. 
The  Act  of  1836  should  be  construed  in  reference  to  this  Act,  both  as  to 
the  character  of  the  ticket,  and  the  offence  which  may  be  committed  by 
giving  it.  The  2na  ground  for  a  new  trial,  involves  a  question  of  fact 
whicli  belonged  to  the  jury.  The  3rd  and  4th  grounds,  depended  on  the 
character  of  tlie  evidence  given  by  Mr.  Addison.  From  the  report  of  the 
presiding  judge,  and  the  admissions  of  the  Solicitor,  and  the  counsel  for  the 
defendant,  the  witness  testified  as  follows  :— That  he  had  seen  the  defend- 
er) 2  Ilill,  389.     An.  (;,)  7  stat.  308,  §  3,  4.     An. 


^477] 


STATE   VS.    BLEASE.  321 


ant  write  but  twice,  once  in  signing  his  name  some  years  ago,  just  after 
be  arrived  in  this  State;  and  the  other  time,  when  the  defendant  signed 
his  name  to  a  recognizance  on  his  admission  to  bail.  He,  witness,  never 
saw  prisoner  write  anything  but  his  name.  The  ticket  offered  in  evi- 
dence, did  not  have  the  name  of  the  prisoner.  The  first  signature  had 
made  no  impression  on  the  mind  of  the  witness,  and  he  did  not  pretend 
to  liave  formed  any  opinion  from  that.  The  witness  saw  another  signa- 
ture, to  an  order  which  the  prisoner  had  acknowledged  to  be  his ;  and 
which  the  witness  identified,  by  having  written  a  certificate  beneath  it ; 
this,  and  the  signature  to  the  recognizance,  formed  the  only  legitimate 
source  of  witness's  primary  information  and  opinion  of  the  prisoner's 
handwriting.  These  may  have  made  an  impression  on  the  mind  of  the 
witness,  and  have  fixed  such  a  standard  in  it,  as  to  authorize  him  to  give 
an  opinion  on  the  disputed  i)aper. — The  question  is,  had  he  such  a 
standard,  to  which  he  could  refer  for  his  belief  and  opinion,  independently 
of  the  papers  themselves ;  and  which  it  seems  were  in  court  ?  (a)  Or 
had  he  formed  his  opinion  by  a  comi)arison  of  the  characters  of  the  dif- 
ferent papers  ?  Upon  this,  in  some  measure  depended  the  pr^imafacie 
testimony  of  the  witness,  which  was  the  predicate  of  all  that  followed  ; 
and  it  seems  to  me  that  what  followed,  had  more  influence  on  the  witness's 
mind  than  anything  else,  to  wit — the  *peculiar  pronunciation  of  r-jtitTC. 
the  prisoner,  and  an  actual  comparison  of  handwriting  on  the  ■- 
stand.  The  presiding  judge  left  it  to  the  jury  to  decide  the  case,  in  some 
measure,  on  the  skill  of  the  witness.  "  A  person  who  has  seen  a  witness 
write,  and  retains  no  distinct  recollection  or  impression  of  the  handwrit- 
ing, may  revive  his  memory  by  looking  at  the  paper  he  saw  written  ;  yet, 
he  will  not  be  allowed  to  form  his  opinion  from  any  supposed  knowledge 
which  he  may  have  acquired  by  comparing  the  characters  of  the  respect- 
ive writings." — (See  4  Carr.  &  Payne,  p.  1.)    These  reports  are  found  in 

Eng.  Com.  L.  Rep.   vol.  .     The  practice  of  allowing  witnesses  to 

testify,  at  all,  from  their  supposed  skill  in  comparison  of  hands,  is  now 
ex])loded  in  the  English  courts,  as  may  be  seen  by  the  cases  referred  to 
in  the  case  I  have  quoted.  Mr.  Addison  certainly  had  some  reference  in 
his  mind  to  the  characters  of  the  signature  which  he  saw  made.  He  may 
have  had  no  impression  existing  in  his  mind  independently  of  these 
papers  ;  if  so,  his  mind  had  come  to  its  conclusion,  rather  by  reference  to 
them,  than  by  referring  to  a  standard  previously  existing  in  his  own  mind. 
The  witness  certainly  made  a  comparison  on  the  stand  ;  and  whether  the 
whole  of  his  testimony  w^as  not  founded  on  comparison,  or  supposed 
knowledge,  acquired  by  comparison,  is  not  entirely  certain.  When  a 
witness  has  distinctly  given  competent  evidence  of  handwriting,  proving 
it,  prima  facie,  the  auxiliary,  and  in  my  mind,  the  unsatisfactory,  testi- 
mony by  comparison  may  be  resorted  to.  The  case  of  Bowman  vs. 
Plunkett,  assumes  that  competent,  but  doubtful,  evidence,  had  been  given 
before  comparison  by  the  witness  of  writings  admitted  to  be  given,  was 
allowed.  I  do  not  wish  to  lay  down  any  rule  in  conflict  with  that 
opinion  ;  I  will  only  say,  however,  if  that  had  been  a  criminal  case,  it 
would  have  been  probably  sent  back  for  a  new  trial.  Doubts  arising 
upon  nice  distinctions  of  law,  should  be  solved  in  favor  of  the  accused  ; 

(a)  See  3  Rich.  383.     An. 
YoL.  I..-22 


:V?'J         nui'MiuA,  r\i.i.  tkkm,   lS;n.     ait.  \oi,.  i.      |*l-7S 

nml  to  SUV  tlio  Icjist  t>rit.  this  ctiso  is  not  iVi'o  iVoni  (loul>t  on  (lif  law.  In 
onnitul  ousos,  this  oonslilor!»ti»>n  slioiiM  liavo  its  intlii(Mu><>.  To  sit  in 
juilgmout  on  tho  lit'i^  of  a  unui,  is  tln>  highest  power  thut  run  bo  ti»>h\u:atoii 
to,  or  oxoroisod  l>y,  any  l\nnian  trilninul  ;  nnd  sl\(>nhl  lunor  Uv  o\(Mvisod 
l»nt  in  oont\>ruiity  with  tho  jM'ost-riptions  o(  strict  law,  ami  npon  salislai*- 
torv  tostimony.  I'nrostriotinl  t»>stin»ony  ami  slirowtl  oonjoiMnro,  tnay  fjt>- 
quontly  rosnlt  in  truth,  and  aiil  jnstii'<>  ;  hnt  in  linn>s  o{'  ajyitation.  tlioy 
may  ho  niado  nso  of,  as  fatal  nionnvS,  to  g'ratily  tho  ilonninds  of  projndioo. 
unii  snhsorvo  tho  oiuls  o(  tyrainiy.  Striot  biw  is  a  t\)rtross  of  protoolion 
anil  (iolouoo.  in  tiun>s  of  violoiu'o.  It  is  nj;ht  that  wo  shonid  maintain 
onr  poonliar  institntiv>ns,  hy  a  laitht'\il,  toarloss,  and  impartial  administra- 
tii^n  v>t'tlio  hvws  of  tho  \i\m\.  lUil  justioo  shonhl  balanoo  niooly  with  hor 
soah's  hot'oro  sho  strilvos  witl»  hor  sword. 

Lot  (ho  dol'ondant  Imvo  a   now  trial  without  prt-jmlioo. 

1!\  \Ns,   U.VNrr.  and  K\iuakoson,  ,1,1.,  ot>nonrrod. 

*i-«)l  *l''AUt.K,  J.  Althong'h  I  ontortaimui  a  ditVoront  oi)inton  at  (lio 
"  J  ttri»nunont,  1  iuolitio  tv>  auroo  that  tho  imliolmont  may  bo  gvunl, 
without  avorrini;-  v>r  sotting  out  tho  \noans  by  whioh  aid  was  otVorod.  On 
a  sonnil  oonstruotiou  of  tho  Art,  lu>wovor,  it  sooms  to  bo  omtoodod,  that 
tho  olVonoo  was  not  oi>mploto  on  tho  part  of  tho  dofonilant,  unloss  tho 
slavo  di»l  aotnally  rm\  away.  This  faot,  thorofi>ro.  oonstitntos  a  n\atorial 
part  of  tho  ohargo,  and  should  havo  boon  allogoil,  as  a  distinot  substantivo 
avormont,  with  timo  and  plaoo,  in  lU'dor  to  bring'  tho  otVonoo  within  all 
tho  matorial  words  of  tho  Aot  ;  nor  is  it  suIVumo\U  that  snoh  faot  bo  sup- 
pliod,  as  it  is  in  this  indiotuuMit,  by  poriphrasis.  intondn\ont  or  oonolnsion. 
(3  Hawk.  or»i.  oh.  !.■;>. ^t,ii")  It  is  a  mistako  to  su[>poso,  that  it  is  always 
"^utlioiont  to  allogo  tho  otVonoo  in  tho  moro  words  of  tho  statuto  ;  for 
whoro  it  consists  of  sovoral  aots,  thoy  should  oaoh  bo  avorrod,  with  tho 
samo  j)artioularity  as  at  oo>»uui>u  law.  This  oxi-opiion  was  i\o\  arguod 
at  tho  bar;  and  tho  Court  has  not  oonsidorod  it.  Uul  1  am  unwilling  to 
sftuotion,  ovon  by  silonoo,  a  dofootivo  ploa^ling  in  a  oai>ital  oaso,  1  think 
tho  indiotmont  insuttloiont.  Tho  soooml  count  doos  not  sot  forth  tho 
ohargi'  with  sulVu"iont  oortainty  and  prooision.  I  otuiour  fully  \\\  granting 
tho  motion  for  a  now  trial,  on  tlio  gronmls  prosontod  bv  Mr.  .lustioo 
Uutlor. 

iri<^/(i//  and  Han/Ziwi',  for  tho  mv>tion.      CahluYll,  Solioiivu*.  contra. 

Norit. — Tho  grounds  of  apjH>al  in  this  onso  ooiiUl  not  l>o  t\unislu>il  by  tlu>  Olork 
of  llko  A\>jH'jil  I'ourt,  t'lvdv  ttu'iruot  tiju'iug  Ih'oii  tUod,  I  pivsumo,  witli  tho  orijjiurtl 
|»«j>i<M  ;  wUioU  will  aoiovmt  for  thoiv  omissUm  hoiv. 

KKrOiJTKK. 

Soo  bifra,  488,  Sint*  vs.  l.e  iWiix.     Ah. 
(a)  1  Kioh.  lj>4 ;  o  MoO.  444.     An. 


'4H()]  DILLARD    VS.    WALLACE.  323 


*A.  J.   DiLLARD  VS.  JkANNETTE  WALLACE.  [*480 

Where  an  overseer  hcas  Ijcen  guilty  of  neglect,  and  some  small  departure  frorn 
the  terms  of  his  contract,  and  these  are  known  to  his  employer,  and  he  is  still 
continued  as  her  overseer,  it  will  he  considered  as  a  waiver  of  them  as  grounds 
to  rescind  the  contract. 

Before  O'Neall,  J.,  Union,  Fall  Extra  Terra,  1837. 

This  was  an  action  of  covenant  brought  for  the  recovery  of  the  plaintifTs 
wages  as  the  defendant's  overseer,  at  the  place  called  the  Meadow  Woods. 
The  defence  was  various,  to  wit.,  that  the  negroes  had  been  worked  in  too 
cold  weather,  that  one  was  whipped  improperly,  that  an  old  woman  and 
ihe  milk  woman  were  employed  Ijy  the  overseer  differently  from  his 
employer's  instructions,  that  the  ijlaintilF  had  ground  and  eat  some  of 
the  defendant's  wheat,  that  he  had  not  gathered  any  peas,  that  the  fodder 
was  so  badly  handled  and  put  up  that  the  whole  was  injured,  and  two 
stacks  were  wholly  w<;rthless;  that  the  defendant's  cotton  was  either 
fraudcntly  packed,  or  picked  out  and  packed  in  such  a  wot  state  as  to 
ruin  it,  and  that  the  crop  of  Col.  Gist,  or  a  part  of  it,  which  the  defend- 
ant was  bound  to  pick  and  pack,  was  by  the  plaintiff  fraudulently 
packed.  The  proof  was  very  clear  and  abundant  that  the  plaintiif  made 
an  extraordinary  crop,  one  hundred  and  six  bales  of  cotton,  and  four 
thousand  five  hundred  bushels  of  corn.  The  defendant  made  no  objec- 
tion, at  any  time,  to  the  payment  of  his  wages;  that  he  had  not  planted 
as  much  corn  and  sown  as  much  oats,  as  he  was  by  his  contract  bound  to 
have  done.  It  was  during  the  argument  that  this  objection  was  raised. 
I  thought  the  evidence  would  warrant  the  jury  in  presuming  that  the 
crop  had  been  planted  according  to  the  contract  There  was  some  evi- 
dence, that,  during  the  extreme  cold  weather  in  February,  1335,  the 
defendant's  negroes  were  at  work,  and  kept  from  the  fire  by  tSe  plaintiff; 
it  also  appeared  that  in  the  course  of  the  winter,  LS34-1835,  a  negro 
man  of  the  defendant's,  (Leckie,)  was  badly  frost  bitten ;  but  whether 
this  was  from  the  act  of  the  plaintiff,  did  not  appear.  The  plaintiff 
whipped  a  negro  woman  for  sending  a  child  from  Meadow  AVoods  to 
the  defendant's  house,  the  defendant  complained  about  it,  and  the  plain- 
tiff said  if  he  had  done  wrong  he  was  sorry  for  it.  An  old  woman,  whose 
duty  it  was  to  attend  to  the  children,  was  put  to  milk  the  cows.  And 
a  woman  (Minder,)  who  had  previously  milked,  and  who  was  a  crop 
hand,  was  put  to  cook ;  this  was  after  the  plaintiff's  marriage,  in  the 
summer  or  fall  of  the  year ;  the  defendant  knew  of  it,  complained  about 
it  to  the  plaintiff,  but  still  suffered  him  to  go  on  as  her  overseer.  The 
defendant  had  kept  some  wheat  for  seed  at  the  Meadow  Woods,  she  aban- 
doned the  idea  of  sowing  it,  and  then  the  plaintiff  had  two  or  three 
bushels  ground  into  flour  and  used  it.  This  fact  was  also  known  to  the 
defendant,  and  on  her  son  making  some  objections'"'  the  i)laintiff  r^io-i 
said  he  could  not  live  on  nothing.  (If  I  recollect  correctly,  the  '- 
defendant  was  to  find  the  plaintiff.)  U[)on  these  several  facts  and  the 
defences  arising  out  of  them,  I  thought  that  the  defendant's  knowledge 
of  them,  and  subsequent  acceptance  of  the  plaintiff's  services  as  her  over- 
seer, was  a  waiver  of  them,  as  grounds  to  rescind  the  contract.     If  she 


324  COLUMBIA,    FALL    TERM,    1837.      APP.  TOL.  I.       [*481 

had  sustained  any  damage  thereby,  she  might  have  claimed  for  it  by  way 
of  discount,  but  she  had  not  filed  any  discount  in  the  case. 

As  to  the  crop  of  peas,  there  was  some  evidence,  from  the  plaintiff's 
own  declarations,  to  show  that  a  large  quantity  was  made.  None  was 
gathered.  But  it  appeared  satisfactorily  from  the  evidence  of  Col.  Martin, 
that  although  a  large  crop  was  planted  and  promised  finely,  yet  that  the 
earlv  frost  prevented  it  from  maturing.  In  the  progress  of  the  case,  Mr 
Thomson  proposed  to  show  that  the  plaintilf  had  received  the  proceeds  of 
the  defendant's  negroes'  crops,  (say  $163,)  and  claimed  a  deduction  for  the 
same  from  his  wages.  To  this  it  was  replied  by  Mr.  Dawkins,  that  the 
plaintiff  had  either  paid  it  to  or  for  the  negroes,  according  to  the  defend- 
ant's instructions,  and  that  not  expecting  such  a  defence,  they  were  not 
then  prepared  to  meet  it ;  he  therefore  objected  to  the  defendant's  defence, 
in  this  behalf,  on  the  ground  that  she  could  only  claim  it  by  way  of  discount, 
which  not  being  filed,  she  could  not  be  permitted  to  give  any  proof  touch- 
ing the  matter.  The  objection  was  sustained.  In  the  progress  of  the 
case,  Mr.  Thomson  referred  to  the  Act  of  1747,  P.  L.  215,  by  the  3rd  sec. 
of  which  it  is  enacted  that  if  the  overseer  employ  any  of  the  negroes  of 
his  employer,  upon  his  own  account,  he  shall  pay  10s.  per  day  to  the  owner : 
the  same  Act  directs  that  this  shall  only  be  recovered  before  a  justice  of 
the  peace,  and  that  the  information  of  the  negroes  shall  be  suflicient  evi- 
dence to  charge  the  overseer,  unless  he  will  exculpate  himself  by  his  own 
oath.  I  thought,  and  so  ruled,  that  the  objections  to  any  defence  arising 
out  of  this  Act,  were  fourfold :  first,  that  there  were  no  facts  proved  in 
the  case  to  which  it  could  apply  :  second,  that  the  10s.  per  day  was  a 
penalty,  and  could  only  be  recovered,  (if  at  all,)  before  a  justice  of  the 
peace  :  third,  that  if  recoverable  here  it  could  only  avail  the  defendant 
by  way  of  discount :  and  fourth,  that  the  Act  was  obsolete.  These  obser- 
vations dispose  of  what  I  regard  as  the  mere  trash  of  the  case,  and  brings 
the  court  to  the  main  and  the  real  defences 

1st.  As  to  the  fodder  :  Wm.  R.  Wilburn,  Dr.  Peak,  Warren  Taylor  and 
Col.  Gist,  thought  the  whole  fodder,  (20  stacks,)  was  put  up  wet  and  was 
rotten  and  worthless.  Mr.  J.  W.  Williams,  a  very  experienced  planter 
and  overseer,  said  that  two  of  the  stacks  were  bad.  Mr.  Daniel  Wallace 
said  several  were  bad  :  the  plaintiff,  on  the  day  of  the  first  exarainatioa 
of  tiie  fodder,  brought  some  bundles  from  the  gin  house  which  were  good, 
and  said  that  that  in  the  stacks  when  put  up  was  equally  as  good,  and  he 
couhl  notaccount  for  it  becoming  injured.  Messrs.  Wilburn  and  Taylor 
♦4821  ''"'^  ^^^^  ^fodder  had  been  put  up  too  green.  Col.  Martin  and 
Mr.  Browning  said  the  season  for  taking  fodder  was  a  broken 
one,  the  early  part  good— the  middle  bad,  and  the  last  good  :  they  both 
spoke  of  a  field  of  40  acres  being  pulled  by  the  plaintiff  on  a  day  which 
promised  to  be  fair,  but  before  it  could  be  taken  up  it  rained  upon  it. 
Mv.  Amhrose  Ray,  a  very  intelligent  and  respectable  farmer  of  the  neigh- 
borhood, .said  thai  18  of  the  stacks  of  fodder  were  good,  two  were  bad  : 
tliat  tlieir  condition  resulted  from  the  blades  being  wet  by  rain  after  they 
were  i»ulh,'d.  This  part  of  the  case  seemed  to  me  to  present  a  naked 
question  of  fact ;  if  ilie  jury  concurred  with  Wilbuni,  Tavlor,  Peak  and 
Gist,  they  might  fnid  for  the  defendant ;  but  if  on  the  other  hand  they 
concurred  with  Mr.  Ray,  they  might  find  for  the  plaintiff. 

2ijd.  As  to  the  defendant's  own  cotton  crop,  the  [iroof  was  somewhat 


*482]  DILLARD    VS.   WALLACE.  325 

various :  it  was  not  nicely  handled  in  picking  it  ont :  it  was  somewhat 
trashy,  and  some  of  it  was  wet.  This  mi^-ht  have  been  the  fault  of  the 
owner  ;  for  the  proof  was,  that  to  enable  Mr.  Rice,  who  had  married  one 
of  the  defendant's  daughters,  and  who  was  about  removing-  to  ^Mississippi, 
to  get  some  of  the  negroes,  the  crop  was  gathered  very  rapidly.  The 
proof  was  clear,  that  at  least  one  bale  of  the  defendant's  cotton  had  Ijeen 
packed  too  wet  and  was  spoiled  ;  some  of  the  witnesses  thought  that  two 
bales  were  in  that  condition.  Thirteen  bales  were  opened,  and  Col.  Gist 
thought  they  were  all  unfit  for  market.  According  to  the  plaintiff's  and 
defendant's  contract,  he  was  to  have  $3  for  every  bale  weighing  310  lbs. 
In  this  parcel  of  55  bales  which  were  alleged  to  be  fraudulently  packed, 
many  of  them  weighed  less  than  310  lbs.  and  I  am  not  certain  that  any 
exceeded  it.  The  whole  crop  of  106  bales,  was  sold  at  a  general  average 
of  $15  20  per  cwt.  This  was  as  much  as  was  generally  realized  for  the 
cro}»  of  1835,  by  the  neighbors  Upon  this  part  of  the  case  I  instructed 
the  jury,  first,  that  if  the  ])laintift' fraudulently  packed  a  single  bag  of  the 
defendant's  crop  ;  or  second,  that  if  the  cotton  was,  by  his  direction,  or  by 
his  neglect,  picked  and  packed  when  too  wet,  that  then  in  either  of  these 
cases,  they  might  find  for  the  defendant. 

3rd.  As  to  Col.  Gist's  cotton.  He  proved  (and  al)out  the  facts  stated 
from  his  testimony  there  can  be  no  doubt,)  that  part  of  his  Tyger  River 
crop,  48  bales,  were  ginned  at  the  defendant's  gin  at  Meadow  Woods 
under  a  contract  with  her  ;  18  bales  brought  a  fair  price,  four  of  the  remain- 
ing 30  were  plated,  and  the  other  26  were  wet.  The  overseer  of  Col. 
Gist  went  with  the  cotton  to  the  gin,  and  was  present  at  the  packing  of 
the  30  bales,  either  in  part  or  in  the  whole.  Upon  this  part  of  the  case, 
I  instructed  the  jury  that  if  the  plaintiff  fraudulently  packed  Col.  Gist's 
crop,  then  on  this  ground  they  ought  to  find  for  the  defendant. 

The  jury  found  for  the  i)laintiff  his  entire  wages  ;  and  as  the  questions 
were  naked  questions  of  fact,  I  should  not  be  disposed  to  disturb  the 
verdict. 

*GR0rNDS  OF  APPEAL.  [*483 

1.  Because  the  contract  was  not  proved  as  laid  ;  the  plaintiff  was  bound  by 
his  contract  to  plant  as  much  as  two  hundred  acres  in  corn,  and  as  much  as 
eighty  or  ninety  acres  in  oats,  and  there  was  no  proof  as  to  the  quantitv  of 
either. 

2.  Because  the  defendant  should  have  been  allowed  some  deductions  from 
plaintiff's  wages  as  her  overseer,  as  it  was  clearly  proven  that  the  cotton  and 
fodder  were  greatly  damaged,  and  still  he  was  allowed  by  the  jury  Ids  full  wao-es. 

3.  Because  the  Court  erred  in  charging  or  instructing  the  jury,  thatlhe 
defendant  could  not  overlook  any  fault  or  offence  of  the  plaintilT,  without 
forever  barring  herself  from  recurring  to  the  same  again,  as  a  ground  of 
complaint,  even  in  conjunction  with  subsequent  violations  of  the  duties  of  his 
station,  but  that  she  must  complain  at  the  time  of  the  act  done,  or  she  could 
not  be  heard  in  Court. 

4.  Because  the  Court  rejected  evidence  as  to  $163  in  the  hands  of  plaintiff", 
belonging  to  defendant,  which  he  haJ  received  as  her  agent  while  acting  as  her 
overseer,  the  proceeds  of  cotton  sold  for  her  negroes,  on  the  ground  there  was 
no  discount  filed,  when  in  fact  that  was  a  part  of  his  duty  as  her  overseer. 

5.  Because  the  Court  ruled  that  the  Act  of  1747,  under  the  head  of  "  over- 
seers of  plantations,"  was  obsolete. 

6.  Because  the  cotton  was  certainly  fraudulently  packed,  and  the  fodder  put 
up  in  a  rotten  condition,  or  soon  became  so ;  and  whether  these  things  occurred 


326  COLUMBIA,    FALL   TERM,    1837.      APP.  VOL.  I.        [*483 

in  consequence  of  fraud  or  negligence  on  bis  part,  the  legal  consequences  were 
the  same. 

7.  Because  the  verdict  was  against  law,  and  the  evidence,  and  the  cliarge  of 
the  judge. 

Curia,  j)er  Evans,  J.  I  have  looked  into  the  agreement  and  the  decla- 
ration in  this  case.  The  declaration  is  in  the  common  form,  setting  ont 
the  agreement,  and  averring  a  general  performance  on  the  plaintiff's  part. 
The  plea  alleges  three  breaches;  first,  that  the  plaintiff  did  not  plant  the 
quantity  of  corn  and  oats  stipulated  in  the  agreement ;  second,  that  he  did 
not  take  proper  care  of  the  negroes,  and  horses,  mules,  &c.  :  third,  that 
be  did  not  take  proper  care  of  the  crop  made  on  the  plantation.  These 
were  the  breaches  alleged,  and  upon  which  the  issues  were  founded,  as  I 
suppose,  for  no  part  of  the  pleadings,  subsequent  to  these,  have  been  fur- 
nished the  Court.  Upon  this  state  of  the  pleadings,  and  the  report  of 
the  presiding  Judge,  this  case  is  to  be  decided. 

On  the  first  ground,  I  would  remark  that,  if  there  had  been  no  proof  of 
performance,  or  the  plaintiif  had  proved  a  different  contract  from  the  one 
set  forth  in  the  declaration,  or  if  the  consideration  consisted  of  various 
parts,  as  in  Brooks  vs.  Loivry,  (1  jS".  &  McC.  342,)  and  they  were  not 
*i8n  ^^^  °"^  *'"  ^^^^  declaration,  and  substantially  proved  on  the  trial, 
-'  the  plaintiff  must  have  failed  ;  but  in  this  case,  every  part  of  the 
contract  is  set  out,  and  performance  of  the  \vhole  averred.  Now,  if  the 
plaintiff  had  offered  no  proof  of  performance,  he  should  have  been  non- 
suited. But  as  some  evidence  was  offered  on  this  point,  and  as  this  evi- 
ence  was  satisfactory  both  to  the  jury  and  the  presiding  Judge,  this  Court 
is  not  disposed  to  disturb  the  verdict  on  that  ground. 

The  second  and  the  sixth  ground  are  substantially  the  same,  and  involve 
the  question  made  in  the  third  assigned  breach,  to  wit,  that  the  plaintiff 
did  not  perform  his  duty  in  gathering  the  fodder  and  in  packing  the  cot- 
ton. The  evidence  of  default  in  these  particulars  is  very  strong,  and  I 
certaiidy  should  not  have  been  disposed  to  disturb  the  verdict  if  the  jury 
bad  found  for  the  defendant.  But  my  experience  has  taught  me  that  a 
jury  who  know  the  parties  and  the  witnesses  is  much  more  competent  to 
decide  pure  questions  of  fact,  than  a  Judge  who  is  an  entire  stranger. 
And  if  to  this  be  added,  that  the  Judge  who  heard  the  evidence  and 
understood  the  case  much  better  than  1  can  from  a  written  report,  has 
certilied  that  he  is  satisfied  with  the  verdict,  I  think  it  would  be  unwise 
to  interfere.  I  would  not  have  it  un  lerstood,  that  by  the  sanction  of  this 
Court,  juries  are  to  be  allowed  without  control  to  si)ort  with  the  rights 
of  liligiints  in  court.  If  they  undertake  to  decide  without  evidence,  or 
capriciously  to  disregard  the  facts  of  the  case,  a  new  trial  ought  to,  and 
60  far  as  depends  on  me,  will,  be  granted.  But  I  cannot  say  it  has  been 
done  in  this  case  ;  and  the  defendant's  motion  on  these  grounds  must  fail. 
_  As  to  the  third  ground,  which  alleges  error  in  tlie  charge  of  the  presi- 
ding Judge,  in  n^lation  to  some  small  departures  of  the  plaintiff  from  his 
duty,  I  agree  with  him.  Tlie  facts  were  known  to  the  defendant  when 
they  occurred.  It  niigiit  have  justilied  her  in  putting  an  end  to  the  con- 
tract, or  entitled  her  U)  an  abatement  in  the  price  by  way  of  discount ; 
l)ut  surely  it  cannot  be  allowed,  after  an  overseer  has  served  faithfully  to 
the  end  of  tlie  year  in  all  other  particulars,  that  his  emi)loyer  shall  avoid 
the  i)ayment  of  the  whole  wages  for  some  fault  committed  in  the  begin- 


*484]  STATE   VS.   IRBY.  327 

ning  of  the  year.  I  concur  with  the  presiding  Judge  (a)  "tliat  the  defend- 
ant's knowledge  and  subsequent  acceptance  of  the  plaintiff's  services  as 
her  overseer,  was  a  waiver  of  them  as  grounds  to  rescind  the  contract."  I 
think  the  Judge  decided  correctly  in  rejecting  the  evidence  in  relation  to 
the  negroes'  crops.  If  it  were  a  part  of  his  duty  as  overseer  under  the 
contract,  it  should  have  been  assigned  as  a  breach,  or  some  notice  as  a 
discount  should  have  been  given  to  enable  him  to  meet  the  charge. 

In  relation  to  the  fifth  ground,  I  would  remark  that  this  Court  does  not 
agree  with  the  presiding  Judge,  that  the  overseer's  Act  of  1747,  (b)  is 
obsolete.  I  am  not  aware  of  any  attempt  to  enforce  it,  but  I  do  not 
think  the  non  user  has  been  long  enough  or  suiBciently  established  to 
declare  the  Act  ^obsolete.  In  all  other  respects,  the  opinion  of  the  r-^Aor. 
Judge  is  correct,  and  needs  no  further  illustration.  •- 

Upon  the  whole,  I  am  unable  to  discover  any  error  in  the  charge  of 
the  judge  or  the  verdict  of  the  jury  which  would  authorize  the  interference 
of  this  Court ;  and  the  motion  is  refused. 

Gantt,  Richardson,  Earle,  and  Butler,  concurred. 

A.  W.  Tliompson,  for  the  motion.     Dawkins,  contra. 


The  State  vs.  R.  Irby,  Adm'r  op  C.  Irby. 

It  is  a  part  of  the  official  duties  of  a  coroner  to  collect  tax  executions  that  are 
placed  in  his  hands,  vrhere  the  sheritF  of  the  district  is  the  tax  collector ;  and 
his  securities  are  liable  for  his  neglect,  or  any  default  which  he  may  make,  in 
not  collecting  them,  &c. 

Before  Evans,  J.,  at  Marlborough,  Fall  Term,  1836. 

The  special  verdict  in  this  case  finds  that  Charles  Irby  was  one  of  the 
securities  of  George  B.  Whitfield,  formerly  coroner  of  Marlborough  dis- 
trict ;  that  Joshua  David,  then  sheriff,  and  also  tax  collector,  for  the  said 
district,  issued  and  lodged  with  the  said  Whitfield,  the  coroner,  divers  tax 
executions,  for  which  he  never  accounted  ;  and  presents  the  question 
whether  the  securities  of  Whitfield  are  liable  for  this  default.  This  pre- 
sents the  question,  whether  the  collection  of  these  tax  executions  was  a 
part  of  the  official  duty  of  the  coroner.  By  the  Act  of  1803,  (see  2 
Brev.  289, )(c)  the  tax  collectors  are  required  to  place  their  tax  execu- 
tions against  such  as  "  shall  make  default  in  payment  of  their  taxes,  for 
collection  in  the  hands  of  the  sheritF,  or  coroner,  when  the  sheriff  is  inte- 
rested, of  the  districts  respectively,  and  iu  the  hands  of  no  other  person 
whomsoever." 

By  the  Act  of  1706,  (1  Brev.  186,)((Z)  the  coroner  is  directed  to  serve 
all  writs  or  processes  directed  unto  hira,  against  the  provost  marshal,  and 
also  in  all  causes  iu  which  the  marshal  is  plaintiff.  This  Act  is  suffi- 
ciently comprehensive   to   authorize   the   coroner   to   execute   any  tax 

(a)  McCracken  vs.  Hair,  2  Sp.  258.     An. 

lb)  3  Stat.  697 ;  see  10  Rich.  131 ;  11  Rich.  172.     An. 

(c)  5  Stat.  456,  I  18.     An.  (rf)  2  Stat.  273,  I  11      An. 


328  COLUMBIA,    FALL   TERM,    1836.      APP.  VOL.  I.       [*485 

execution  issued  against  the  sheriff;  and  the  Act  of  1803  must  have 
contemplated  other  cases  than  such  as  the  sheriff  was  defendant  in.  The 
^  words  are,  "to  the  *coroner,  when  the  sheriff  is  interested."  Now, 

-I  it  seems  to  me,  that  the  sheriff  is  interested  in  the  tax  executions 
issued  by  himself;  and  that  the  Act  of  1803  was  intended  to  enforce  the 
case  under  consideration.  It  is  therefore  considered  that  the  postia  be 
delivered  to  the  plaintiff. 

GROUND    OF   APPEAL. 

Because  the  c(>llectioD  of  the  tax  executious  was  not  the  official  duty  of  the 
coroner,  and  his  securities  are  not  liable  for  his  neglecting  to  collect  them. 

Curia,  per  Evans,  J.     This   Court  concurs  in  the  opinion  of  the 
presiding  judge,  and  the  motion  is  refused. 

Gantt,  Richardson,  Butlee,  and  Earle,  JJ.,  concurred. 
Graham,  for  the  motion.      Withers,  Solicitor,  contra. 
See  Act  of  1839,  11  Stat.  54,  §  41. 


Jesse  B.  Turner  vs.  D.  Wallace,  Administrator. 

The  plaintiflf  lived  with  his  father  (defendant's  intestate)  from  1828  up  to  the 
time  of  his  death  in  1834,  in  the  capacity  of  an  overseer,  for  which  he  was  to 
receive  a  certain  portion  of  the  crops  annually. 

It  appeared  that  he  never  received  all  of  liis  share  of  the  cotton  crops  before  the 
death  of  defendant's  intestate,  and  that  his  father  acknowledged  to  one  witness 
that  he  owed  his  sou  more  than  the  value  of  a  certain  slave  called  Anthony, 
whom  he  intended  the  plaintiff  should  have,  over  and  above  his  distributive 
share  of  his  estate.  Defendant's  intestate  made  a  will,  but  for  want  of  proper 
attestation  it  was  not  admitted  to  probate  ;  in  that  he  left  the  boy  Anthony  to 
plaintiff:  Ileld,  that  there  was  a  sufficient  consideration  to  support  the  action 
of  assumpsit,  and  the  verdict  of  the  jury  for  the  plaintiff  was  sustained,  and  a 
new  trial  refused. 

Before  O'Xeall,  J.,  at  Union,  Extra  Fall  Term,  1836. 

This  was  an  action  of  assumpsit,  to  recover  the  sura  of  §800,  for  work 
done  for  the  intestate,  by  the  plaintiff,  who  was  his  son. 

In  1828,  the  plaiuliff  was  about  removing;  the  deceased  said  he  must 
not  go;  it  would  ruin  him.  lie  and  his  family,  from  that  time  to  the 
death  of  Mr  Turner,  in  1834,  lived  on  the  plantation  of  the  latter.  The 
"'4871  1','"'"''^  attended*  to  the  farm,  and  all  of  his  father's  business. 
The  crops  of  corn  were  divided,  the  cotton  crops  were  sold,  and 
according  to  the  testimony  of  Mrs.  Turner,  (the  widow  of  the  deceased,) 
the  proceeds  were  paid  to  the  deceased.  The  plaintiff  got  sugar  and 
coflfee,  generally  at  the  stores  in  the  neighborhood.  Ilis  debts  were 
genernlly  paid  l)y  his  father  during  the  whole  time  he  lived  with  him. 
The  decj>ased  admitted  that  he  was  in  debt  to  the  plaintiff,  and  said  that 
at  his  death  lie  would  leave  him  enough  to  make  it  up  to  him.  Shortly 
before  his  death,  not  more  than  four  days,  he  attempted  to  make  a  will, 


*487]  TURNER  VS.   WALLACE.  329 

but  from  not  having;  it  properly  attested,  it  could  not  be  admitted  to 
probate.  In  that  paper  he  bequeathed  to  the  ))lainti(T',  over  and  above  an 
equal  share  of  his  estate,  a  negro  man  named  Anthony.  He  told  Mr. 
Page,  who  drew  that  paper,  that  he  owed  the  ])laintiff  more  than 
the  value  of  Anthony,  and  wished  therefore  to  secure  him  to  ])lainti9". 
Anthony  sold  at  the  sale  for  rather  more  than  $800.  The  year  in  which 
the  deceased  died,  the  plaintiff  retained  out  of  the  cotton  crop  sold,  one- 
fourth,  as  his  share.  The  plaintiff  administered  on  his  father's  estate, 
but  his  administration  was  revoked  ;  in  a  few  months,  he  came  to  an 
account  before  the  Ordinary,  and  did  not  then  make  his  claim. 

The  Court  thought  the  case  one  entirely  of  fact,  and  after  overruling  a 
motion  for  a  nonsuit,  submitted  the  case  to  the  jury,  stating  to  them  that 
they  must  be  satisfied,  before  they  could  find  for  the  plaintiff,  that  the 
defendant  was  liable  to  pay  him  for  his  services,  that  he  was  in  arrear  to 
him,  on  that  account,  and  that  at  the  time  of  making  his  will,  he  admitted 
that  he  owed  the  plaintifl:'  as  much  as  the  value  of  Anthony.  The  jury 
found  for  the  plaintiff.  ^ 

The  defendant  appeals  on  the  annexed  grounds : 
For  a  nonsuit ; 

1st.  Because  there  was  no  legal  promise  proven,  or  any  consideration  upon 
which  the  action  can  be  sustained. 

2d.  Because  the  evidence  did  not  take  the  cause  out  of  the  statute  of 
limitations,  which  was  pleaded. 

3d.  Because,  IVoni  the  evidence,  it  was  fairly  to  be  presumed  old  Mr.  Turner 
intended  what  be  said  as  gratuitous. 

For  a  new  trial : 

1st.  On  the  same  grounds,  so  far  as  they  are  applicable  to  this  motion. 

2d.  Because,  it  appeared  clearly  from  the  evidence,  there  was  no  considera- 
tion to  support  a  promise,  as  the  plaintiff  received  full  compensation  for  his 
services  on  his  father's  plantation,  and  there  was  uo  other  consideration 
attempted  to  be  proved. 

Because  the  verdict  is  contrary  to  law  and  evidence. 


*  Curia,  per  Gantt,  J.     We  see  no  reason  for  disturbing  the 
verdict  of  the  jury,  and  the  motion  is  dismissed. 

The  whole  Court  concurred. 

Herndon,  for  the  motion.     Dawkins,  contra. 

See  Hunter  vs.  Hunter,  Ex''or  of  Finley,  3  Strob.  321.     An. 


[=^'488 


330  COLUMBIA,    FALL   TERM,    1835.      APP.  VOL.  I.        [*488 

IN  THE  COURT  OF  3. 


The  State  vs.  John  La  Creux. 

In  an  indictment  for  inveigling,  &c.,  Edmond,  the  slave  of  L.  J.  Cross,  it  was  held 
not  necessary  to  allege  tliat  L.  J.  C.  vras  the  owner  or  emploj-er  of  the  said 
slave.     It  is  sufficient  if  the  charge  is  laid,  "one  negro  slave  of  L.  J.  C." 

The  material  words  of  the  statute  under  which  an  indictment  is  framed  must  be 
used. 

It  is  not  necessary  to  allege  in  an  indictment  by  what  means  or  how  the  prisoner 
aided  the  slave  in  departing  from  the  service  of  his  master. 

Before  Richardson,  J.,  Orangeburgh,  October  Term,  1835. 

This  was  an  indictment  for  inveigling,  &c.,  the  slave  of  L.  J.  Cross, 
named  Edmond,  and  containing  an  account  for  aiding  Edmond  to  run 
away.  Several  objections  were  made  to  the  form  of  the  indictment, 
which  were  overruled  by  the  Court. 

J.  Whitemore  and  Taylor  proved  a  pretty  clear  case  of  inveigling, 
and  the  jury  found  a  verdict  of  guilty,  from  which  the  defendant  appeals, 
and  moves  in  arrest  of  judgment,  upon  the  grounds  set  forth  in  the  notice 
of  appeal.  The  motion  for  a  new  trial  depends  upon  the  precise  evi- 
deuce,  and  that  in  arrest,  upon  the  form  of  the  indictment,  and  require 
no  further  report  of  the  case. 

GROCXDS   OP   APPEAL. 

1.  Because  the  indictment  does  not  allege  whether  the  said  Leonard  J.  Cross 
was  the  owner  or  employer  of  the  said  slave  Edmond. 

2.  Because  the  first  count  in  the  indictment  alleges  that  the  prisoner  in- 
veigled, stole,  and  carried  away  the  said  slave,  which  is  repugnant  and  void. 

3.  Because  in  the  said  first  count,  the  prisoner  is  indicted  partly  under  the 
first  and  partly  under  the  second  clause  of  A.  A.  17.54.  (a) 

*489l  *^"  ^^^^"s^'  i"  the  second  count,  it  is  not  alleged  by  what  means 
J  and  how  the  prisoner  aided  the  said  nefjro  in  running  away. 

f).  Because  the  two  counts  state  distinct  and  different  offences,  which  make 
the  indictment  repugnant  and  void. 

And  for  a  new  trial.  1.  Because  there  was  no  evidence  at  all  to  support 
the  second  count. 

2.  Because  the  evidence  offered  was  insufficient  to  support  the  first  count. 

3.  Because  the  verdict  was,  in  general,  contrary  to  evidence  and  law. 

*  Curia,  per  O'Neall,  J.  The  prisoner  has  moved,  upon  various 
grounds,  to  arrest  the  judgment  ;  the  first  of  which  is,  that  the  indict- 
ment does  not  allege  that  the  said  Leonard  J.  Cross  was  the  owner  or 
employer  of  the  said  slave.  The  charge  is  laid  "  one  negro  slave  of 
Leonard  J.  Cross."  This  is  sufficient.  For  the  statute  does  not  make 
it  necessary  that  the  word  owner  and  employer  should  be  used  in  the 
indictment,  in  order  to  bring  the  offender  within  the  statutory  definitions, 
which  is  to  "  inveigle,  steal,  or  carry  away  any  slave,  so  that  the  owner 
or  cnjploycr  of  the  said  slave  shall  be  deprived  of  the  use  and  benefit  of 
the  siiid  slave."  It  is  enough  if  such  w«n-ds  are  used  as  show  from  whose 
possession  the  slave  was  inveigled,  stolen,  or  carried  away,  and  that  this 
(a)  7  Stat.  426.     An. 


*489]  STATE   VS.    LA   CREUX.  331 

person,  who  is  in  law  regarded,  for  tlic  purposes  of  a  case  like  the  present, 
both  as  owner  and  employer,  was  deprived  of  the  use  and  benefit  of  the 
said  slave. 

TljdC  second  gi'ound  is,  that  the  charge  in  the  first  count  of  the  indict- 
ment, that  the  prisoner  inveigled,  stole,  and  carried  away  the  said  slave, 
is  repugnant  and  void.  This  supposes  that  at  least  two  distinct  offences 
are  charged  by  the  words  used  ;  but  this  is  not  necessarily  the  case. 
For  to  inveigle,  so  that  the  owner  or  employer  be  deprived  of  the  use 
and  benefit  of  a  slave,  is  to  steal  and  carry  away ;  and  although  there 
may  be  cases  of  a  stealing  and  carrying  away  in  which  there  is  no  invei- 
gling, this  does  not  render  a  charge  in  which  all  are  contained,  repugnant 
and  void.  It  only  superadds,  and  the  circumstances  which  must  be 
proved  to  make  out  the  offence  is  laid. 

The  indictment  is  in  the  material  words  of  the  Act  of  the  Legislature, 
and  this  is  the  well-established  rule  by  which  such  an  indictment  is  to  be 
framed.  (Stark.  Crim.  Plead.  249.)  It  conforms,  in  using  all  the  words 
of  the  Act,  although  they  import  more  offences  than  one,  to  the  precedent 
under  7  G.  2,  c.  21  ;  Stark.  Crim.  Plead.  244  ;  and  also  under  the  45 
G.  3,  c.  89,  for  forging  a  bank  note,  3  C.  C.  P.  1049. 

The  third  ground  is,  because  the  prisoner  is  indicted  partly  under  the 
first,  and  partly  under  the  second  clause  of  the  Act.  This  supposes  that 
the  words  "so  that  the  owner  or  employer  be  deprived  of  the  use  and 
benefit  of  the  said  slave,"  applies  exclusively  to  the  second  clause,  and 
not  to  the  first.  This  is  not  so,  they  apply  to  both,  as  will  be  seen  by 
referring  to  Covington's  case,  2  Bail.  569. 

*Fourth.     It  was  not  necessary  to  allege  by  what  means  or  r^,  iQQ 
how  the  prisoner  aided  the  negro  in  running  away  and  departing  L 
from  the  service  of  his  master.     The  fact  is  charged  in  the  words  of  the 
Act  :  and  it  would  be  just  as  reasonable  to  ask  that  the  means  and  man- 
ner of  inveigling  should  be  stated. 

Fifth,  If  the  counts  are  for  distinct  and  sepai'ate  offences,  it  would 
be  no  ground  on  which  to  arrest  the  judgment,  (a)  The  prisoner  might 
have  asked  and  compelled  the  prosecutors  to  elect  on  which  the  case 
should  proceed.  Not  liaving  done  so,  the  conviction  can  be  applied  to 
either,  and  on  either,  enough  appears  to  justify  the  judgment  of  death 
against  the  prisoner.  The  facts  proved,  however,  apply  to  the  first 
count,  and  to  that,  the  Court  is  bound  to  refer  the  verdict.  This  is  also 
an  answer  to  the  first  ground  for  a  new  trial.  For  it  is  wholly  immaterial 
whether  there  was  or  was  not  any  evidence  on  the  second  count. 

On  the  second  and  third  grounds  for  a  new  trial,  it  is  sufficient  to 
remark,  that  the  evidence  of  the  prisoner's  guilt  here,  is  precisely  the 
same  as  in  Covington's  case,  and  after  the  labored  examination  which  it 
received  from  my  brother  Johnson,  it  cannot  be  necessary  to  say  any 
thing  more  upon  the  subject. 

Tiie  motions  in  arrest  of  judgment  and  for  a  new  trial  are  dismissed. 

Johnson  and  Harper,  JJ.,  concurred. 

Bellenger,  for  the  motion.     Elmore,  Solicitor,  contra. 

(a)  3  Stxat.  514,  51G  ;  2  Bail.  72. 

See  Supra,  472,  State  va.  Bkase  ;  State  vs.  McCoy,  2  Sp.  714;   State  vs.  Posey, 
7  Rich.  4y7;   State  vs,  Anderson,  1  Strob,  400;  3  Rich.  172.     An. 
The  defendant  was  hanged. 


332  COLUMBIA,  SPRING  TERM,  1835.      APP.  VOL.  I.       [*490 

B  THE  COUPJ  OF  3. 


Thomas  Evans  r6!.  Herbeet  Hinds. 

The  docket  of  the  Court  in  the  sum.  pro.  jurisdiction,  with  this  entry,  "Alex. 
Gre<i(j  vs.  R.  J.  Gregg — Decree  for  Plaintiff,''''  is  not  such  evidence  of  a  judg- 
ment as  will  enable  a  purchaser  of  land  at  sheriff's  sale  to  recover  in  an  action 
of  trespass  to  try  titles. 

Before  Earle,  J.,  at  Marion,  Spring  Term,  1835. 

Trespass  to  try  titles.  Both  parties  derived  title  under  Robert  J. 
Gregg.  The  plaintiff  claimed  under  a  sheriff's  sale.  The  original  judg- 
ment and  execution  were  not  produced.  They  were  supplied  by  the  fol- 
*4<)n  lowing  evidence:*  The  sale  recited  in  the  deed,  was  stated  to 
-■  have  been  under  an  execution,  Alex.  Gregg  vs.  Robert  J.  Gregg. 
The  clerk  of  the  Court  testified  that  there  are  no  minutes  of  the  Court  of 
that  day  which  contain  entries  of  decrees  under  the  summary  jurisdiction, 
of  which  the  only  evidence  now  to  be  found  in  the  office  is  the  dockets. 
That  he  cannot  find  the  execution  in  the  above  case;  thinks  all  the  exe- 
cutions against  Gregg  are  now  in  Court  that  can  be  found.  If  such 
an  one  is  in  his  office,  it  is  not  in  its  proper  place.  On  this  evidence  the 
Court  admitted  the  following  entry  from  the  docket  in  evidence  : 

Docket  of  March  Teem,  1S22. 
Alex.  Gregg  ^ 

vs.  V  Decree  for  plaintiff, 

R.  J.  Gregg.  ) 

Original  execution  book  of  the  sheriff.  Tart,  contained  the  following  entries  : 
Alex.  J.  Gregg  ^  Fi.  Fa.  in  asH. 

vs.  > 

Robert  J.  Gregg.  )  Gee,  Attorney. 

Ent.  \     Decree,  ...  $24  00 

4  April,  1822.    )      Attorney,  .  .       9  46 

Clerk,     ...       1  .-iO 

Sheriff,   ...       1  75 

Levy  on  one  hundred  acres  of  land  adjoining  lands  of  R.  Howard.  Offered  the 
land  for  sale  in  Ortol)er,  and  no  bid  to  be  had:  (ith  April,  1824,  sold  the  above 
land,  and  knocked  off  to  I<;ily  Gasrjne,  at  ten  dollars,  and  same  paid  ;  sheriff's 
deed  to  (ias.jue,  Gth  April,  1S24.     He  conveyed  to  plaintiff',  22d  September,  1830. 

Defendant  also  claimed  under  sheriff's  sale.  He  introduced  a  record  and  judg- 
ment of  Jiirhard  Howard  \s.  R.  J.  Greqq,  on  a  bond,  dated  Aug.  17,  1822,  for 
$100(1,  judgirient  31st  Oct.,  1825,  execution  same  day;  sale  3d  Jan.,  182(),  to 
Richard  Howard  ;  sheriff's  deed  same  day  ;  recorded,  27th  January,  1829. 

Several  olyections  were  made  to  the  plaintiff's  recovery,  besides  the  want  of 
proof  as  to  the  existence  and  loss  of  the  judgment  and  execution,  and  the  insuffi- 
ciency of  the  evidence  by  which  they  were  supplied.  It  was  alleged  the  execution 
of  Alex.  Grrgg  vs.  R.  J.  Gregg,  was  satisfied.  Tlio  proof  was  on  that  point  as 
follows  :  Wm.  (iregg  deposed  that  Alex,  (iregg  told  him  before  the  sale  of  the 
land,  that  Tart,  tlie  sheriff,  had  paid  him  up;  and  afterwards,  in  the  sheriff's 
offu-e,  Howard  inquired  if  he  had  got  his  money.  He  said  yes,  I  have  got  it  ;  and 
Tart  said  lie  had  paid  it.  Howard  said,  I  am  glad  of  it,  for  now  my  mortgage 
IS  good.     On  tlio  same  point,  R.  J.  Gregg  swore  that  it  was  not  paid  off.    There 


^-192] 


EVANS   VS.    HINDS.  333 


was  certcainly  no  proof  of  *the  payment  of  costs,  for  wliicli  the  land  might  r^,qcf 
have  been  sold,  as  well  as  for  the  debt  itself.  The  ground  assumed  was,  '■ 
that  the  sheriff  himself  had  paid  it  off  with  his  own  funds,  and  therefore  the 
execution  was  inoperative  ;  and  it  is  well  settled  that  the  sheriff  cannot  in  general 
keep  open  an  execution  which  he  has  himself  paid  off;  against  the  defemlant  he 
could  not  enforce  it.  But  if  the  defendant  make  no  objection,  can  third  persons  ? 
It  was  objected  further,  that  the  execution  of  Greyg  vs.  Gre>/g,  was  out  of  date, 
and  therefore  inoperative,  and  the  levy  was  void.  It  was  lodged  4tli  April,  1S22. 
The  sale  was  made  Gth  April,  1824.  The  levy  was  without  date ;  if  made  within 
the  year  and  day  which  the  execution  had  to  run,  then  the  authority  to  sell  was 
complete,  even  after  the  lapse  of  that  period,  without  renewal.  There  was  no 
proof  on  the  subject.  I  submitted  to  the  jury  that  in  the  absence  of  proof,  the 
general  princii^al  that  public  officers  will  be  presumed  to  have  done  their  duty, 
until  the  contrary  appear,  might  aid  the  plaintiff''s  case.  That  it  was  the  duty 
of  the  sheriff"  to  levy  the  execution  or  return  it  within  the  year  and  day  ;  if  levied, 
it  was  not  necessary  to  return  it,  and  therefore  as  lie  afterwards  proceeded  to  sell, 
they  might  jiresunie  that  the  levy  was  made  within  the  lawful  time.  Another 
objection  to  the  plaintiff's  recovery  was,  that  his  deed  from  the  sheriff  had  never 
been  recorded.  On  this  point  it  was  proved  by  Elly  Gasque,  that  Howard  knew 
of  his  having  purchased  the  land  before  he  bought ;  that  he  paid  taxes  for  the 
land,  and  had  a  tenant  on  it.  I  submitted  to  the  jury  whether  Howard  had  ex- 
plicit notice  of  Gasque's  deed,  and  instructed  them  if  he  had,  that  the  deed  was 
valid  without  recording. 

On  the  question  of  fraud  in  the  sale  to  Gasque,  which  was  much  relied  on,  the 
evidence  was  fairly  submitted  to  the  jury.  Many  of  the  circumstances  accom- 
panying the  transaction  were  suspicious.  The  land  was  worth  six  or  seven  hun- 
dred dollars,  and  sold  for  ten  dollars.  In  the  other  transactions  about  the  same 
time,  concerning  the  negroes  of  Gregg,  and  in  which  the  sheriff'  and  Gasque  were 
active  agents,  there  can  be  no  doubt  that  there  was  fraud.  Yet,  both  Gasque  and 
Gregg  swore  that  there  was  no  understanding  or  agreement ;  that  Gasque  paid 
his  own  money  for  the  land,  which  has  never  been  refunded  to  him  by  any  one, 
and  after  paid,  sold  the  laud  to  pay  his  own  debts. 

I  refer  the  Court  to  my  notes  on  this  point,  and  to  an  abstract  of  the  entries  in 
the  sheriff's  books. 

The  jury  found  for  the  plaintiff,  and  the  defendant  appeals,  on  the  grounds 
annexed : 

1st.  Because  no  judgment  of  the  Court  was  given  in  evidence,  or  produced, 
or  shown  to  have  existed,  which  would  authorize  a  sale  of  the  land  by  Tart, 
sheriff,  to  Elly  Gasque. 

*2d.  Because  it  did  not  appear  that  the  execution  by  which  the  land  is  r.^ ,  „,, 
pretended  to  have  been  sold,  was  of  active  force  at  the  time  of  the  levy  ^ 
or  the  sale.     It  was  lodged  4th  April,  1822,  and  the  land  sold  Gth  April,  1824. 
The  presumption  is,  it  was  not  offeree,  and  the  Judge  should  have  so  charged. 

3d.  Because  the  cause  of  Alexander  Gregg  vs.  lluljcrt  J.  Gregg,  by  virtue  of 
which  the  sale  of  the  land  was  attempted,  was  paid  by  sheriff  Tart,  to  the 
plaiutiU',  long  before  the  sale. 

4th.  Because  the  deed  made  by  sheriff  Tart,  to  Elly  Gasque,  not  being 
recorded,  as  the  law  requires,  was  absolutely  null  and  void  as  to  creditors,  of 
whom  Mr.  lloward,  under  whom  the  defendant  claims,  was  one. 

fjth.  Because  the  deed  from  Tart  to  Gasque,  not  being  recorded,  as  required 
by  law,  was  void  as  to  subsequent  purchasers,  of  whom  lloward  under  whom 
defendant  claims,  was  one,  and  no  notice  to  lloward  before  his  purchase  was 
proved. 

Gth.  Because  the  sale  by  sheriff  Tart,  and  purchase  by  Gasque,  was  for  the 
benefit  of  Tart,  the  sheriff,  and  Kobert  J.  Gregg  the  defendant  in  execution, 
and  therefore  fraudulent  and  void,  and  his  Honor  should  have  so  charged  the 
jury. 

7th.  Because  the  verdict  of  the  jury,  was  contrary  to  law  and  evidence. 


33-i  COLUMBIA,    FALL   TERM,    1836.      APP.  YOL.  L        [*493 

Appeal  determined  at  Columbia,  Fall  Term,  1835. 

Curia,  per  O'Neall,  J.  The  first  ground  is  fatal  to  the  plaintiff's 
action.  For  until  the  judgment  was  produced,  or  its  existence  and  loss 
proved,  the  plaintiff  could  take  nothing  from  his  purchase  at  sheriff's 
sale.  The  evidence  clearly  shows  that  no  judgment  in  fact  ever  existed, 
and  hence  it  follows  that  the  execution  and  sale  under  it,  were  alike  un- 
authorized and  wrongful.  The  case  of  3IcCaU  vs.  jBoadvrighf,  (2  Hill, 
488,)  cannot  be  distinguished  from  this,  and  its  authority  supercedes  the 
necessity  of  argument  or  investigation. 

The  motion  for  nonsuit  is  granted. 

Johnson  and  Harper,  JJ.,  concurred. 
Graham,  for  the  motion.     Clones,  contra. 

See  5  Rich.  372  ;  10  Rich.  395.     An. 


IN  THE  COURT  OF  10.-1836. 


*494]  *  Daniel  D.  Free  ads.  The  State. 

To  discredit  a  witness,  it  is  incompetent  to  oflfer  testimony  to  prove  that  the  witness 

has  been  guilty  of  stealing. 
Where  incompetent  testimony  has  been  received,  and  no  objection  is  made  at  the 

time  of  its  reception,  counsel  have  the  right  to  comment  upon  it  before  the  jury. 

Before  Gantt,  J.,  at — ,  Fall  Term,  1836. 

The  defendant  was  convicted  on  a  charge  of  trading  with  a  slave.  The 
trading  consisted  in  having  sold  to  a  slave  three  yards  of  cotton  shirting, 
at  twenty  cents  per  yard.  Matthew  Petigru  was  introduced  as  a  witness 
to  prove  the  trading.  To  show  that  I'etigru  was  not  entitled  to  credit, 
testimony  was  offered,  proving  that  he  had  been  guilty  of  taking  two 
great  coats  in  Columbia.  In  the  cross  examination  of  Petigru  by  defen- 
dant's counsel,  he  was  asked  questions  respecting  the  cloaks,  for  the  pur- 
pose of  discrediting  his  testimony.  The  evidence  was  conclusive  that 
Petigru  did  take  the  cloaks.  The  first  ground  taken  for  a  new  trial  is 
correctly  stated.  I  did  restrain  the  counsel  within  the  specified  limits, 
and  1  refused  to  permit  them  to  draw  conclusions  from  the  evidence  of 
Pctigru's  guilt.  I  may  liavc  narrowed  down  the  rule  to  the  injury  of  the 
defendant.  The  extent  to  which  counsel  may  go,  appears  to  be  clearly 
settled. 

If  tliu  jury  should  be  permitted  to  draw  conclusions  for  themselves  after 
!i  full  development  df  the  real  character  of  the  witness,  whose  testimony 
is  impeached,  then  the  counsel  were  restricted  within  limits  too  con  lined. 


*494]  FREE   ads.   STATE.  335 

GROUNDS   OF   APPEAL. 

1.  Because  his  Honor,  the  presiding  Judge,  erred  in  refusing  to  allow  the 
defendant's  counsel  in  argument  to  impeach  the  credit  of  the  witness  Petigru, 
by  adverting  to  and  relying  upon  the  testimony  brought  out  under  the  decision 
of  his  Honor,  that  the  witness  Petigru  had  stolen  two  cloaks  and  a  jug. 

2.  Because  his  Honor  erred  in  charging  the  jury  that  the  testimony,  that  the 
witness  Petigru  had  stolen  two  cloaks  and  a  jug,  would  not  impeach  his  credit, 
and  that  they  were  bound  to  regard  him  free  from  the  guilt  of  larceny. 

3.  Because  without  the  testimony  of  Petigru,  there  was  not  sufficient  credible 
testimony  to  warrant  the  jury  in  finding  the  defendant  guilty. 

Curia,  per  Butler,  J.  The  testimony  introduced  to  show  that  Peti- 
gru had  been  guilty  of  having  taken  two  coats,  with  a  view  to  discredit 
him,  was  clearly  incompetent ;  and  there  is  little  doubt  that  the  presiding 
♦Judge  would  have  rejected  it,  if  an  objection  had  been  made  to  r^.ar, 
its  competency.  I  assume,  as  it  is  inferable  from  the  facts  re-  L  ^"^"^ 
ported — that  uo  ojection  was  made  to  the  introduction  of  the  testimony. 
The  question  is,  how  was  it  to  be  regarded  after  it  was  permitted  to  go 
to  the  jury.  Incompetent  testimony  is  frequently  received  by  consent ; 
indeed  parties  are,  sometimes,  sworn  themselves  in  their  own  case.  When 
such  testimony  is  so  received,  it  is  usually  regarded  as  competent  testi- 
mony is — to  be  believed  or  not  believed,  as  the  jury  may  think  proper. 

The  effect  and  influence  of  testimony  must  depend  upon  the  minds  of 
those  who  are  to  be  governed  by  it.  What  weight  will  be  given  to  testi- 
mony is  a  question  for  the  jury,  and  not  for  the  Judge.  Xo  one  mind 
can  prescribe  limits  to  the  belief  of  another,  nor  say  what  influence  evi- 
dence is  to  have  in  producing  belief.  The  Judge  who  tried  this  case  says, 
"  I  did  restrain  counsel  within  the  specified  limits,  (I  suppose  the  limits 
specified  in  the  grounds  of  appeal,)  and  I  refused  to  permit  them  to 
draw  conclusions  from  the  evidence  of  Petigru 's  guilt."  This,  the  Court 
is  of  opinion,  the  Judge  could  not  do.  After  the  evidence  was  fairly 
before  the  jury,  counsel  had  a  right  to  comment  on  it,  as  on  any  other 
evidence. 

The  motion  for  a  new  trial  is  granted. 

The  whole  Court  concurred. 

Gregg,  for  the  motion.     Player,  Solicitor,  contra. 

See  Supra,  458.    An. 


336  COLUMBIA,  SPRING  TERM,  1837.      APP.  VOL.  I.       [*495 

IN  THE  COURT  OF  6  LAW  JUDGES. 


The  State  ex  rel.  John  R.  Donaldson  vs.  Meekin  Townsend. 

It  is  no  ground  to  arrest  the  election  of  a  Sheriff,  and  to  eject  him  from  office, 
because  the  election  at  one  of  the  polls  in  the  district  was  managed  by  one 
manager,  assisted  by  another  appointed  by  the  Senator,  under  the  Act  of  1828, 
p.  39,  without  any  objection  being  made  to  the  appointment  on  the  part  of  the 
representatives. 

Before  Richardson,  J.,  at  Marlborougli,  April  Term,  1837. 

Motion  for  an  information  in  the  nature  of  a  quo  tvarranfo,  requiring 
Meekin  Townsend  to  show  by  what  authority  he  holds  the  office  of 
Sheriff. 

An  election  was  held  for  Sheriff  of  Marlborough,  the  second  Monday 
of  January  last ;  at  Brownsville,  one  of  the  places  of  election,  the  poll  was 
*iQfi1  *™^"'^g^d  ^"cl  conducted  by  one  manager,  originally  appointed, 
•^  and  one  appointed  by  the  Senator  alone,  the  other  representative 
being  out  of  the  district.  By  including  the  poll  at  Brownsville,  Towns- 
end  was  elected ;  exclude  the  poll  and  he  was  not  elected.  There  are  in 
Marlborough  six  places  of  election,  and  three  managers  at  each  place. 
On  the  Thursday  after  the  election,  twelve  of  the  managers  met  at  the 
Court  House,  counted  the  votes,  including  the  votes  taken  at  Browns- 
ville, declared  Meekin  Townsend  duly  elected,  and  gave  him  a  certificate. 
Afterwards,  on  the  same  day,  and  before  the  hour  of  four  o'clock,  P.  M,, 
John  R.  Donaldson,  one  of  the  candidates,  protested  against  the  election 
in  writing,  on  the  ground  that  the  election  at  Brownsville,  being  managed 
and  conducted  by  only  one  manager,  was  illegal  and  should  not  have  been 
counted 

Seven  of  the  twelve  managers  who  counted  the  votes  and  declared  and 
certified  the  election,  certified  that  they  believe  it  was  illegal  and  should 
be  set  aside.  Townsend  sent  his  certificate  of  election  to  the  Governor 
and  was  commissioned  Sheriff.  The  holding  of  the  election  by  only  one 
manager  was  a  mere  irregularity,  of  which  the  managers  were  the  proper 
judges.  They  counted  the  Brownsville  poll,  and  their  decision  is  conclu- 
sive. The  ol)jection  to  the  certificate  of  the  managers  was,  that  the  poll 
at  Brownsville  should  have  been  holden  ;  it  was  illegally  managed,  there- 
forevoid.  But  I  considered  it,  at  most,  an  irregularity,  within  the  juris- 
diction of  the  assembled  managers,  and  their  decision  conclusive.  The 
election  had  been  fairly  conducted  at  the  place  and  in  the  manner  directed 
by  the  Legislature.  The  appointment  of  one  manager  by  the  Senator, 
unol)jccted  to  by  the  Representative,  was  competent.  The  object  of  the 
power  given  to  the  Senator  and  Representative  is  remedial  of  a  frequent 
inconvcMieiicc  (of  the  al)sencc  of  one  or  more  of  the  original  managers,) 
and  to  -nsure  a  fair  election.  This  object  is  to  be  chiefly  regarded.  I 
did  not  jjcrceive,  tliat,  even  had  the  poll  been  holden  by  one  manager 
alone,  that  it  would  have  been  utterly  void,  (though  irregular,)  so  as  to 
place  the  respondent  in  the  situation  of  an  usurper  of  office",  and  authorize 


*496]       STATE  Ex  rel.  Donaldson  vs.  townsend.         337 

this  Court  to  arrest  his  commission.      Such  irregular  poll  would  have 
been  the  consideration  of  the  managers,  not  for  this  Court. 

GROUNDS    OF   APPEAL, 

Because,  from  the  facts  of  the  case,  information  in  the  nature  of  a  quo  toar- 
ranto  ought  to  have  been  ordered. 

Curia,  per  Richardson,  J.  The  election  of  sheriff  was  given  to  the 
people  by  the  Act  of  1808,  2  Brev.  "  Sheriff,"  sec.  71. (a)  To  be  managed 
as  the  election  of  Senator  and  Representatives.  The  managers  of  the 
polls  are  to  declare  the  result  of  the  election,  and  certify  it.  Upon 
their  certificate,  the  .Governor  gives  commission  to  the  successful  candi- 
date, and  he  goes  into  office.  Under  all  the  evidence  of  ofifice  which  I 
*have  referred  to,  Mr.  Townsend  presents  himself  as  the  rightful  r^\(\^ 
incumbent.  Is  he  to  be  ousted  ?  It  has  been  decided,  in  the  ^ 
case  of  the  State  vs.  DeLesseline,  (2  iMcC.  53,)  that  it  takes  a  majority 
of  the  managers  of  all  the  polls  to  count  the  votes  and  declare  the  election. 
And  it  is  now  urged,  that  no  less  than  a  majority  of  the  managers  for 
each  poll  are  competent  to  hold  it.  But  we  know  that  the  House  of 
Representatives  have  upheld  as  a  member,  the  candidate  who  received  a 
majority  of  the  votes,  including  a  poll  so  holden  by  one  or  two  or  more 
managers.  Such  a  legislative  decision  is  imposing  authority,  when  we 
consider  that  Sheriff's  elections  are  ordered  to  be  holden  and  managed 
as  elections  for  the  Legislature.  To  this  authority  we  may  add,  that  a  dis- 
tinguished judge  has  said,  in  the  case  of  the  State  vs.  Huggins  (State 
Rep.  139,)  that  one  manager  may  hold  the  election.  And  I  should 
therefore  hesitate  to  say,  there  being  no  other  objection,  that  in  such  case 
the  election  would  be  utterly  void.  This  is  the  judicial  province.  We 
may  arrest  the  certificate  and  commission,  if  they  infract  the  law  or  the 
constitution  of  the  State.  The  judges  are  to  see  that  no  usurper  of  office 
shall  keep  it  ;  the  rest  is  within  the  legal  jurisdiction  of  the  managers 
and  the  Governor.  But  there  is  no  necessity  for  deciding  absolutely 
upon  that  point.  By  the  Act  of  1828,  p.  39,  the  delegation  of  each  dis- 
trict is  authorized  to  substitute  managers  of  polls,  in  cases  of  vacancy.  (6) 
And  in  the  instance  before  us,  the  Senator  of  the  district,  in  the  absence 
of  the  single  Representative,  filled  up  the  vacancy  of  one  of  the  original 
managers  ;  and  this  appointment  is  not  objected  to  by  the  Representative. 
In  such  a  case,  when  the  proper  object  is  merely  to  ascertain  the  true 
vote  and  appointment  by  the  people  of  their  officer,  and  that  purpose  has 
been  answered,  as  we  are  assured  by  the  certificate  of  the  managers,  I 
can  scarcely  call  it  an  irregularity,  liut  assuredly  this  manner  of  holding 
the  poll  to  receive  the  votes,' has  infracted  no  plain  rule  of  law  or  the 
principles  of  the  constitution,  to  justify  this  Court  to  arrest  the  election, 
and  eject  the  incumbent  from  his  office. 

The  motion  is  therefore  dismissed. 

Butler,  Earle,  and  Evans,  JJ.,  concurred. 

Graham,  for  the  motion,     Mr. ,  contra. 

See  Cheves,  267;  2  Rich.,  6.     An. 

(a)  5  Stat,,  569,     An.  (6)  6  Stat.,  94,  §  2.     An. 

YoL.  1—23 


338  COLUMBIA,    FALL    TERM,    1835.       APP.  VOL.  I.        [*498 

IN  THE  COURT  OF  3. 


*498]  *Alex.  Hamilton  vs.  James  J.  Langley, 

The  Same  vs.  George  C.  Mayson. 

In  an  action  on  the  case  for  slander  in  charging  the  pLaintiff  with  perjury,  the 
colloquium  stated  in  the  declaration  set  forth  the  trial  of  an  indictment  for  a  riot ; 
the  record  produced  on  tlie  trial  was  for  a  riot  and  assault ;  held,  to  be  an  imma- 
terial variance. 

So,  a  slight  variance  in  the  names  of  the  defendants  in  the  indictment,  as  set  out 
in  the  declaration  and  contained  in  the  record,  may  be  cured  by  parol  proof  of 
the  identity  of  the  persons. 

Before  Earle,  J.,  at  Edgefield,  Fall  Terra,  1835. 

These  were  both  actions  of  slander,  for  similar  words,  spoken  by  both 
defendants  of  the  plaintiff,  charging  hira  with  having  sworn  a  lie  on  the 
trial  of  an  indictment.  There  was  a  verdict  in  the  first  case  for  the  plain- 
tiff for  one  dollar,  and  in  the  other  for  one  hundred  dollars,  both  being 
submitted  at  the  same  time,  under  the  same  argument  and  charge,  and  on 
the  same  evidence.  _  Both  parties  appeal,  and  as  the  objections  of  the 
defendant  apply  to  the  pleading  on  a  motion  for  a  nonsuit,  they  will 
be  first  disposed  of  'JMie  colloquium  in  the  declaration  set  forth  the 
trial  of  an  indictment.  The  Stale  vs.  John  H.  Robinson,  Irvine  Huchi- 
xon.  George  G.  Mayson  and  F/nlip  Ogilsbee,  for  riot.  The  indictment 
jtrodnced  on  the  trial,  with  which  the  minutes  of  the  former  trial 
corresponded,  was  Tlie  Stale  vs.  John  H.  Bobinson,  Irvine  Huchison, 
Philip  Gglibee  and  Gonway  Maijson,  riot  and  assault.  It  was  proved 
that  George  C.  Mayson,  and  Conway  Mayson,  and  Philip  Ogilsbee 
and  Philip  Ogilbee,  are  the  same  identical  persons  ;  but  it  was  ob- 
jected, on  the  motion  for  nonsuit,  that  the  variance  was  fatal,  and  could 
not  be  supplied  by  parol.  In  the  first  place  I  came  to  the  conclusion, 
after  some  deliberation,  that  the  variance  was  immaterial.  On  this  sub- 
ject the  cases  are  numerous,  and  not  free  from  contradiction,  and  without 
undertaking  to  refer  to  them  or  collect  them,  I  was  of  opinion  that  as  an 
assaul,t  was  an  usual  constituent  ingredient  of  riot,  and  the  greater  neces- 
sarily includes  the  less,  it  was  still  an  indictment  for  riot,  although  it  era- 
braced  a  count  f(n-  an  assault.  In  fact,  the  oath  of  the  plaintiff  which  was 
alleged  to  be  false,  applied  strictly  to  the  charge  of  riot,  and  the  defend- 
ants were  convicted  of  riot.  The  variance  in  the  names  was  also  imma- 
t<'rial,  and  if  otherwise,  it  was  co!n])etent  to  cure  the  variance  by  proof 
u^i  the  identity  of  the  p(u-sons.  The  old  strictness  on  this  subject  is  much 
abated,  and  since  the  case  of  7Jn',s/o)i  &  Wright,  the  Courts  seem  in  Eng- 
land to  be  always  endeavoring  to  tic  up  the  generality  of  the  proposi- 
tions {a)  But  the  distinction  between  that  and  all  similar  cases  and  those 
under  consideration,  is  that  in  the  former  the  i)aper  or  record  set  out  con- 

(a)  2  Doug.,  OG.').     An. 


*499]  HAMILTON    VS.    LANGLET.  339 

stitutes  the  *plaintiff's  cause  of  action,  the  gravamen  of  his  case,  r^Anq 
the  foundation  of  his  injury.  Here,  on  the  contrary,  it  is  mere  ■- 
inducement  to  the  statement  of  the  injury,  the  mere  occasion  in  reference 
to  which  the  slander  was  uttered,  and  the  same  strictness  is  not  required. 
Indeed,  I  doubt  the  necessity  of  producing  tlie  record  at  all,  and  1  think 
on  principle,  and  that  authority  may  be  found,  that  the  occasion  of  the 
taking  of  the  oath  alleged  to  be  false,  the  trial,  and  all  the  colloquium, 
may  be  proved  by  parol. 

I  overruled  the  other  objections  to  the  declaration  contained  in  the 
defendant's  grounds.  The  fact  was  enough,  that  it  was  an  indictment 
for  riot,  for  that  was  sufficient  to  show  that  the  Court  had  jurisdiction  of 
the  cases,  and  of  course  the  power  to  administer  the  oath.  In  an  indict- 
ment for  perjury,  the  materiality  of  the  oath  is  essential,  but  in  a  civil 
action  it  cannot  be.(o)  The  presumption  is,  that  what  a  witness  swears  is 
material,  and  if  the  defendant  expects  to  avoid  a  recovery  on  that  ground, 
he  must  show  that  the  particular  oath  charged  to  be  false,  was  on  an 
immaterial  point.  How  far  it  w^ould  avail  him,  I  would  not  say.  The 
jury  found,  as  already  stated,  verdicts  for  plaintiff,  and  the  plaintiff 
appeals  on  several  grounds.  As  to  the  first,  it  is  sufficient  to  say  that 
there  was  no  olijection  made  to  the  defendant's  going  into  the  proof  of 
the  facts  and  circumstances  on  which  they  relied  to  create  suspicion  ;  at 
least  I  remember  no  formal  objection,  and  I  have  taken  note  of  none. 
Second,  I  considered  it  competent  for  the  defendant  to  impeach  the  oath 
of  the  plaintiff  on  any  point  he  chose.  Suppose  he  had  not  specified  any 
point  or  particular  at  the  time  of  the  speaking,  surely  he  might  on  trial 
show  it  false  in  any  particular;  and  if  he  does  specify,  I  do  not  perceive 
he  should  be  bound  by  it  as  by  a  technical  rule  of  pleading.  I  need  not 
remark  further  on  the  others.  It  is  difficult  to  conceive  how  the  juries 
could  have  come  to  results  so  different  on  the  same  evidence.  The 
verdict  for  one  dollar  was  surely  too  small,  with  the  other  there  is  no 
reason  to  be  dissatisfied. 

Defendant's  grounds  for  a  nonstdt. 

1.  Because  there  was  a  material  and  fatal  variance  between  the  record 
offered  in  evidence  and  that  described  in  the  declaration. 

2.  Because  there  was  no  allegation  in  the  declaration  that  the  Court  in 
which  the  indictment  was  tried,  had  jurisdiction  of  the  case  or  had  power  to 
administer  an  oath. 

3.  Because  the  declaration  did  not  allege  that  the  oath  of  the  plaintiff  had 
been  taken  on  a  point  material  to  the  issue. 

Plaintijfs  grounds  for  a  neio  tried. 

1.  Because  the  Judge  permitted  evidence  of  the  justification  in  fact  under 
the  "plea  of  the  general  issue,"  and  on  points  in  which  the  plaintiff's  testimony 
had  not  been  impeached  hy  defendants,  when  speaking  the  slanderous  words. 

*2.  Because  his  Honor  charged  that  the  proof  of  defendants  militating  r*r()Q 
against  the  oath  of  plaintiff,  should  necessarily  reduce  the  damages.  '   ^ 

3.  The  verdicts  were  too  small,  and  were  inconsistent. 

Curia,  per  O'Xeall,  J.  Upon  the  motion  for  a  nonsuit,  this  Court 
coucurs  in  opinion  with  JNIr.  Justice  Earle,  and  principally  for  the  rea- 

(6)  See  2  McM.,  118.     An. 


340  COLUMBIA,   FALL   TERM,    1835.      APP.  VOL.  L        [*500 

sons  whicli  he  has  given.  The  rule  stated  by  Starkie  in  his  treatise  on 
Evidence,  (4th  part,  page  1603,)  that  where  a  fact  is  simply  alleged 
without  vouching  any  instrument,  and  the  instrument  is  used  as  mere 
evidence,  a  variance  will  not  be  fatal  if  the  substance  of  the  allegation 
be  proved,  covers  the  point  made  by  the  defendant  on  the  motion  for  a 
nonsuit,  for  a  variance  between  the  record  set  out  and  that  offered  in 
proof.  The  record  was,  it  is  true,  particularly  alleged,  but  still  it  was  a 
mere  allegation  of  the  record,  without  vouching  it,  and  as  in  substance  it 
was  made  out,  it  was  sufficient. 

The  Court  of  General  Sessions  is  a  Court  of  general  jurisdiction, (a) 
and  it  was  unnecessary  to  allege  that  it  had  jurisdiction  of  the  indictment. 
So,  too,  it  was  unnecessary  to  state  that  the  oath  of  the  plaintiff  was 
taken  on  a  point  material  to  the  issue.  As  soon  as  it  appeared  from  the 
declaration  that  the  defendant's  words  applied  to  a  legal  swearing  on  the 
part  of  the  plaintiff,  it  became  in  legal  contemplation  an  imputation  of 
perjury. 

As  to  the  first  and  second  grounds  of  a  new  trial,  the  Judge's  report 
explains  away  the  first,  and  on  the  second  we  concur  with  him.  Upon 
the  third  ground,  I  would  remark  that  a  question  of  damages  is  particularly 
for  the  jury,  and  it  must  be  a  manifest  case  ot  error  upon  which  we  would 
undertake  to  interfere.  The  opinion  of  the  presiding  Judge,  that  the 
damages  found  were  too  small,  cannot  help  the  plaintiff;  for  notwith- 
standing we  are  disposed  to  give  effect  to  his  opinion  in  all  cases  where  it 
can  be  done,  yet  this  is  one  of  those  cases  in  which  he  had  not  the  means 
of  saying  that  the  verdict  was  against  evidence.  For  the  damages  are 
more  discretionary  than  otherwise  with  the  jury. 

The  motions  are  dismissed. 

Johnson  and  Harper,  JJ.,  concurred. 

Wardlaw  and  Wa7^dlaw,  plaintiff's  attorneys.  Griffin,  defendant's 
attorney. 

(«)  2  McMuL,  116.     An. 

See  2  Sp.,  592;  2  Rich.,  580.     An. 


*501]      STATE,  Ex  reJ.  golem  an  vs.  maxcy  et  al.         341 

IN  THE  COURT  OF  ERRORS. 


*TiiE  State,  ex  7'elaiiovp.  I.   H.   Coleman  vs.  Hart  Maxcy,  rt-PyQ\ 
E.  J.  Arthur  et  al.  ^ 

The  Act  of  1836,  in  regard  to  vagrants,  is  held  to  be  constitutional. 

The  powers  conferred  iipon  a  Court  of  Justices  by  the  Act  of  1830,  in  regard  to 
vagrants,  is  no  violation  of  tliose  parts  of  tlie  Constitution  which  provide  "that 
no  man  shall  be  deprived  of  his  life,  liberty  or  projaerty,  but  by  the  judgment 
of  his  peers,  or  by  the  law  of  the  land  ;"  and  that  "  the  trial  by  jury,  as  here- 
tofore used  in  this  State,  shall  be  forever  inviolably  preserved." 

A  proceeding  for  vagrancy  under  the  Act  of  1836,  is  not  barred  by  a  prosecution 
in  the  Court  of  Sessions  for  gaming. 

Before  Earle,  J.,  Columbia,  at  Chambers,  23d  Nov.,  1837. 

The  relator,  under  the  Act  of  December,  1836,  had  been  preceded 
against  as  a  vagrant,  on  the  following  charge  :(a) 

"  That  the  said  I.  H.  Coleman  has,  within  the  last  six  months,  within 
ten  miles  of  the  South  Carolina  College,  kept  or  used  a  house  as  a  house 
for  gaming ;  and  that  the  said  I.  H.  Coleman,  within  the  last  six  months, 
within  ten  miles  of  the  South  Carolina  College,  has  aided  or  assisted  in 
keeping  or  using  a  house  as  a  house  for  gaming ;  and  that  the  said  I.  H. 
Coleman  has,  within  the  last  six  months,  kept  a  faro  bank,  or  other  device 
for  gaming,  within  ten  miles  of  the  South  Carolina  College." 

On  the  hearing  before  the  justices  and  freeholders,  on  the  9th  inst.,  he 
was  convicted,  and  adjudged  to  be  a  vagrant.  The  record  of  the  con- 
viction states  the  acts  charged  in  the  same  form.  This  proceeding  was 
instituted  on  a  requisition,  in  writing,  signed  thus  :  "  John  D.  Edwards, 
Solicitor,  by  R.  W.  Singleton,  acting  Solicitor." 

A  motion  was  made  before  rae,  for  a  prohibition  to  the  Court  of  Jus- 
tices, kc,  to  restrain  them  from  proceeding  to  enforce  their  sentence,  on 
several  grounds;  mainly,  as  to  the  sufficiency  of  the  information  and  con- 
viction in  point  of  form  ;  the  bar  created  by  the  pending  of  a  prosecution 
for  gaming,  in  the  Court  of  Sessions  ;  the  jurisdiction  of  the  Court,  and 
the  constitutionality  of  the  Act  of  1836.  The  several  grounds  of  oI)jec- 
tion  were  deemed  unavailing ;  and  on  full  consideration,  the  motion  for  a 
prohibition  was  refused. 

The  relator  giving  notice  of  his  intention  to  appeal,  the  Court  was 
ordered  to  forbear  proceeding,  until  the  hearing  of  the  appeal. 

The  appeal  was  heard  in  the  Court  of  Errors,  at  Columbia,  Dec,  183T. 

Curia,  per  Earle,  J.  In  the  argument  here,  several  questions  have 
been  raised  and  discussed,  on  the  regularity  of  the  proceedings  of  the 
Court,  and  on  the  sufficiency  of  the  intbrmation,  warrant,  and  conviction, 
in  point  of  form.  These  points  I  do  not  regard  as  properly  presented 
for  consideration,  on  a  motion  for  prohibition.     The  proceedings  before 

(«)  6  Stat.,  554.     An. 


342  COLUMBIA,   DECEMBER,    1S37.      AFP.  VOL.  J.         [*501 

the  Justices  are  required  to  be  returned  to  the  Circuit  Court,  to  be  filed 
away  of  record  there.  The  conviction  bein^  summary  before  an  inferior 
^,„g-,  and  limited  jurisdiction,  *a  motion  will  be  in  order,  to  quash  it  for 
■^  any  sufficient  cause  apparent  on  the  face  of  the  proceedings,  either 
for  irregularity  or  insufficiency.  I  do  not  perceive  that  there  is  any 
objection  to  either,  that  ought  to  prevail.  If  the  same  technical  precision 
and  accuracy  were  required  in  the  proceedings  before  Justices,  that  are 
necessary  in  indictments,  the  administration  of  criminal  justice  would  be 
rendered  almost  impracticable.  The  principal  ground  of  objection  lies 
at  the  root  of  the  whole  proceeding,  and  assumes  that  the  Act  of  the 
Legislature  of  1836,  nnder  which  it  has  arisen,  is  in  violation  of  those 
parts  of  the  Constitution  wliich  provide  "that  no  man  shall  be  deprived 
of  his  life,  lil)erty  or  property,  but  by  the  judgment  of  his  peers,  or  by 
the  law  of  the  land,"  and  that  "the  trial  by  jury,  as  heretofore  used  in 
this  State,  shall  be  forever  inviolably  preserved." 

This  presents  a  very  grave  question,  and  the  discussion  of  it,  if  equal 
to  its  importance,  might  occupy  a  great  deal  of  time,  and  would  afl'ord 
employment  for  the  greatest  ability. 

The  2d  sect  of  the  9th  article  of  our  State  Constitution,  part  of  which 
I  have  quoted,  is  drawn,  as  every  one  knows,  from  Magna  Charta, 
adopted  under  King  John,  and  subsequently  confirmed  by  other  princes, 
and  lastly  by  Edward  II.  ('0  ^^  the  construction  of  the  words  "  law  of 
tlie  land,"  it  seems  to  be  held  in  England,  that  the  expression  embraces 
the  common  law  and  the  statute  law  down  to  the  end  of  Edward  2d's 
reign.  By  analogy,  it  has  been  held  in  this  State,  that  the  same  terms 
used  in  our  Constitution,  must  embrace  the  common  law  as  then  adopted 
liere,  and  the  statutes  of  (Jreat  Britain,  and  of  this  iState,  made  of  force, 
and  in  oiteration  at  that  time.  So  the  Gth  sect,  relative  to  the  trial  by 
jury,  as  heretofore  used,  taken  in  connection  with  the  2d,  which  secures 
trial  by  peers,  would  seem  to  imply  that  the  institution  of  trial  by  jury 
was  to  be  preserved  and  enjoyed  according  to  the  law  of  the  land  then 
known  and  in  operation,  I  tliink  it  may  well  be  questioned,  whether  the 
6th  article  was  intended  to  impose  any  further  restriction  on  the  Legisla- 
ture, or  to  secure  any  larger  right  to  the  citizen,  than  the  2d  section 
intended  to  secure.  It  cannot  be  supposed  that  inconsistent  provisions 
on  tlie  same  subject  would  be  inserted  in  an  instrument  so  carefully  drawn 
and  so  fully  considered. 

The  2d  section  had  already  secured  life,  liberty  and  property,  except 
by  the  judgment  of  peers,  or  by  the  law  of  the  land.  When  the  6tli 
section  (k'clares  that  the  trial  by  jury,  as  heretofore  used,  shall  be  pre- 
Kcrved,  I  suppose  it  meant  otdy  that  it  should  continue  to  be  used  except 
where  it  was  superceded  or  dispensed  with  by  the  "law  of  the  land," 
under  the  former  section.  In  the  construction  of  these  words,  it  has 
iK'cn  lieM,  both  in  England  and  here,  that  they  do  not  mean  merely  the 
coninif)n  law  and  statutes,  but  that  they  recognize  and  embrace  the  pro- 
ceedings of  the  various  courts  of  ascertained  jurisdiction,  known  to  the 
law,  "as  the  several   mutters  determinable,  summarily,  by  one  or  more 

Oi)  :i  T)<-sH.  Eq.,  47R;  2  Bail.,  f,77;  1  Bay.,  391;  1  Bur.,  471;  2  Sn.,  767;  5 
Rich.,  J 07,  1J5;   10  Rich.,  4  to.     A,i. 


*502]      STATE,  Ex  rel.  coleman  vs.  maxcy  et  al.         343 

justices  of  the  peace,"  says  *Dr.  Sullivan,  (2  Lect.,  262;)  and  r*-r)o 
Waties'  Justice,  iu  Zylstra's  case,(a)  enumeratiuf^  the  exceptions  L 
to  the  trial  per  jxires,  includes  "the  courts  of  justices  of  the  peace, 
because  they  are  sanctioned  by  long  use,  and  it  may  be  said,  by  a  po])ular 
adoption  of  them,"  and  for  other  considerations.  A  freeman,  therefore, 
is  not  to  be  deprived  of  his  life,  liberty  or  property,  but  by  the  judgment 
of  his  peers,  or  by  the  law  of  the  land  ;  that  is  to  say,  by  the  judgment 
of  some  competent  judicial  tribunal,  known  to  the  law,  and  proceeding 
upon  some  rule  of  action  prescribed  by  the  Legislature,  according  to  the 
accustomed  forms,  or  as  Lord  Coke  has  it  "by  due  process  of  law." 

I  cannot  but  think  it  would  be  too  rigid  a  construction  of  the  6th  sec- 
tion, concerning  the  trial  by  jury,  to  say  that  the  Legislature  can,  in  no 
case,  in  all  time  to  come,  confer  upon  such  courts  as  have  been  referred  to, 
as  exceptions  to  trial  ^jer  ^mres,  any  jurisdiction,  in  matters  civil  or  crim- 
inal, which  they  had  not  at  the  adoption  of  the  Constitution.  I  think  it 
more  liberal  and  sensible  to  construe  the  6th  in  connection  with  the  21 
section.  That  fundamental  instrument  should  not  be  construed  like  a 
deed  conveying  an  estate  or  granting  a  power.  It  is  a  political  regula- 
tion, and  should  receive  such  interpretation  as  to  secure  the  peace  and 
good  order  of  society,  so  far  as  is  compatible  with  the  liberty  of  the 
citizen. 

We  are  led  to  inquire  how  stood  the  subject  of  vagrancy,  at  that  time. 
Idle  and  disorderly  persons,  vagrants,  are  terms  often  occurring  in  the  old 
statutes.  They  have  been  from  time  immemorial,  in  England,  subject  to 
the  summary  jurisdiction  of  justices  of  the  peace.  (Com.  Dig.  Justices  ; 
Burn's  Justice,  Vagrants.)  And  by  the  Stat.  11  Geo.  2,  ch.  5,  no  less 
than  seventeen  different  classes  or  descriptions  of  persons  are  declared  to 
be  vagrants,  who  may  be  apprehended,  tried  iu  a  summary  manner,  and 
on  conviction,  be  imprisoned  and  whipped. 

Our  Act  of  1787,  (6)  much  less  rigorous  in  its  provisions,  appears,  nev- 
ertheless, to  have  been  modelled  on  that  of  George  II.  It  enumerates  the 
various  descriptions  of  persons  who  shall  be  deemed  vagrants  ;  and  it  is 
obvious  that  its  penalties  are  directed  against  all  those  idle  and  disorderly 
persons,  who  either  have  no  visible  means  of  living,  or  who  pursue  such 
means  of  gaiinng  a  livelihood  as  are  dishonest,  or  subversive  of  the  peace 
and  good  order  of  society.  Among  these  are  "  al!  who  acquire  a  liveli- 
hood by  gambling  or  horse-racing,  without  any  other  visible  means. "  The 
mode  of  proceeding  is  prescribed  ;  and  on  conviction,  the  defendant  is 
required  to  give  security  for  good  behaviour  for  twelve  months,  and  on 
failure  may  be  committed  A  fair  copy  of  the  proceedings  is  required  to 
be  returned  to  the  next  Court,  to  be  filed  of  record  ;  and  if  the  Court 
shall  not  think  fit  to  discharge  the  offender,  he  may  be  sold,  or  whipped, 
or  put  to  hard  labor. 

The  Act  of  1836,  under  which  this  conviction  has  been  made,  enacts 
that  if  any  person  shall,  within  ten  miles  of  the  South  Carolina  College, 
keep  or  use  any  house  for  gaming,  or  keep  or  use  any  faro  bank,  or  other 
*device  for  gaming,  he  shall  be  proceeded  against  as  a  vagrant,  r,-^-Ai 
and  on  conviction,  shall  be  deemed  such,  and  be  required  to  give  ^ 
security  for  good  behaviour,  and  that  he  will  not  offend  against  the  Act 

(«)  1  Bay.,  389.     An.  (Ij)  5  Stat.,  41.     An. 


344  COLUMBIA,    DECEMBER,    1837.      APP.  VOL.  I.         [*504 

for  three  years  ;  and  in  defanlt,  to  be  proceeded  against  as  in  other  eases 
of  vagrancy.  And  it  is  urged  that  the  Legislature  cannot,  at  pleasure, 
inake°vagrant?,  by  Act,  of  any  class  of  persons,  that  whim  or  caprice 
may  prompt ;  and  this  may  be  conceded  without  affecting  the  argument. 
Tliough,  if  vagrancy  be  in  itself  an  offence,  it  would  not  be  easy  to  pre- 
scribe a  limit  "to  the  power  of  the  Legislature,  to  subject  any  class  of  the 
vicious,  idle  and  dangerous  to  its  penalties.  But  in  the  Act  of  1836,  they 
have  not  departed  from  the  enumerated  classes  in  the  Act  of  1787,  viz.: — 
all  those  who  gain  their  liveliliood  by  gambling  or  horse-racing,  having  no 
other  means.  In  the  Act  of  1836,  a  person  is  subjected  to  the  penalties 
of  the  former  Act,  who  gains  his  living,  in  part,  by  keeping  a  gambling 
house  or  faro  bank  in  the  vicinity  of  the  College,  without  inquiry  as  to 
his  other  means  of  living.  And  it  would  seem,  that  the  danger  to  the 
institution  here,  or  the  prejudice  to  the  community  at  large,  is  just  the 
same,  whether  the  keeper  of  a  gambling  house  or  faro  bank  has  other 
means  of  gaining  a  livelihood,  or  not,  admitting  that  to  be  a  vicious  and 
dangerous  one,  within  the  scope  of  the  Act  of  1787. 

It  is  objected  that  it  is  beyond  the  power  of  the  Legislature  to  consti- 
tute this  new  class  of  vagrants,  and  authorize  them  to  be  proceeded 
against  as  such,  under  the  provisions  of  the  Act  of  1787,  because  it  de- 
])rives  a  man  of  his  liberty  without  a  trial  by  his  peers  ;  because  the  trial 
by  jury  is  not  preserved  as  heretofore  used.  I  consider  the  Acts  against 
vagrants,  as  they  are  embraced  in  those  of  1787  and  1836,  as  highly  ben- 
clicial ;  and  if  carefully  and  rigidly  enforced,  that  they  would  prevent 
much  of  the  crime  that  is  peri)etrated  in  the  country.  If,  however,  they 
are  violations  of  the  constitutional  rights  of  the  citizen,  I  should  be  very 
unwilling  to  lend  the  aid  of  this  court  to  enforce  them.  "The  maxim 
then,  is,"  says  Dr.  Sullivan,  "that  no  man  shall  be  taken  and  committed 
to  prison,  hnt  per  judicium  parium,  vel  per  legem  terras.''^  2  vol.  Lect. 
265.  According  to  the  interpretation  which,  I  have  endeavored  to  show, 
lias  been  put  ni)on  those  words,  even  in  connection  with  the  6th  Section 
of  the  9th  Article,  concerning  trial  by  jury  as  heretofore  used,  can  it  be 
said,  that  a  person  charged  under  either  Act,  and  carried  before  the  court 
of  justices  for  vagrancy,  is  taken  and  imprisoned  otherwise  than  by  the 
law  of  ihe  land,  or  due  process  of  law  ?  I  cannot  come  to  that  conclu- 
sion ;  the  court  which  tries  him  is  known  to  be  the  law  of  the  land  ;  has 
l)een,  from  time  immemorial,  part  of  the  law  of  tiie  land;  and  its  whole 
proceedings  are  l)y  due  i)r(.)cess  of  law  ascertained  and  established. 

Here  we  naturally  come  to  incpiire,  what  are  the  true  ends  and  purposes 
*5051  ^^  ^^^  ^^^^^  against  vagrants  ?  I  think  they  have  been  imperfectly* 
^  understood,  at  least  so  far  as  relates  to  the  jurisdiction  and  pro- 
ceedings of  the  magistrates.  I  tliink  it  is  not  the  main  purpose  of  those 
Acts,  to  |)roceed  Ijy  way  of  ])unishing  for  an  offence;  for  vagrancy  in 
il.sclf,  can  luirdly  l)e  deemed  a  distinct  offence.  The  Acts  seem  rather 
intended  to  afford  some  adequate  security  to  the  public,  against  the 
flanger  to  be  appreliended  from  the  several  classes  of  persons  enumerated, 
all  of  whom,  from  their  want  of  honest  employment,  or  from  their  vicious 
jnirsuits,  may  well  l)e  considered  as  dangerous  to  society.  The  proceeding 
at  first,  tlierefore,  is  merely  infpiisitorial,  to  ascertain  the  means  of  living, 
and  the  mode  of  life,  of  Ihi;  suspected  person  ;  and  if  it  be  found  that  he 
lias  no  vi.sil^ie  means  of  living,  or  pursues  a  vicious  aud  dishonest  course 


*505]     STATE,  Ex  rd.  coleman  vs.  maxct  et  al.         3-1:5 

of  life,  tlien  that  the  orderly  and  virtuous  portion  of  the  community  shall 
have  some  security  against  the  depredations  to  be  apprehended  from  such 
a  character.  This  security  is  atforded  by  a  recognizance  for  good 
behaviour,  for  twelve  months,  under  the  Act  of  1787,  and  for  three 
years,  under  the  Act  of  1830  ;  or  by  confiueraent  until  the  next  Court,  to 
which,  also,  the  proceedings  are  required  to  be  returned.  The  office  of 
the  justices  here  terminates. 

In  case  the  bond  is  given  for  good  beliaviour,  the  object  to  be  attained 
is  accomplished  ;  the  security  against  ai)prehended  miscliief  is  afforded. 
If  it  be  not  given,  the  suspected  jterson  is  turned  over  to  the  Court  of 
Sessions,  That  Court,  on  looking  into  the  proceedings  and  evidence, 
may  discharge,  if  they  are  insufficient.  Under  the  Act  of  183G,  the 
grave  question  woukl  arise,  whether,  if  the  Court  should  not  see  fit  to 
discharge,  it  would  be  authorized  to  sell  the  services  of  the  persons 
charged,  or  to  order  him  to  be  whipped,  or  to  be  put  to  hard  labor.  These 
are  the  alternatives  under  the  Act  of  1787  ;  and  I  think  they  have  been 
generally  practised  on,  although  the  same  constitutional  scruples  have 
been  often  urged.  Yet,  it  would  seem  not  i^  be  a  violation  of  the  right 
of  trial  by  jury  as  heretofore  used,  for  the  Court,  as  before  remarked,  was 
a  part  of  the  law  of  the  land,  and  the  trial  there,  was  always  without 
jury.  The  question,  whether,  under  the  Act  of  1836,  the  Court  could 
l)roceed  to  act  on  the  conviction  of  the  justices,  without  further  trial, 
does  not  necessarily  arise  here,  and  no  opinion  will  be  expressed  by  tlie 
Court.    It  is  a  question  which  the  Circuit  Court  must  first  decide  for  itself. 

Supposing,  however,  under  either  Act,  that  the  Court  should  feel  itself 
fettered  by  the  constitutional  objection,  or  should  not  be  disposed  to 
adopt  the  rigorous  alternatives  provided  in  case  the  defendant  has  not 
given  the  security,  there  is  another  course  wh'ch  may  be  pursued  by  the 
Court,  in  virtue  of  its  general  powers  of  criminal  jurisdiction.  The 
Court  being  in  possession  of  all  the  evidence  taken  before  tiie  justices, 
if  it  should  not  see  fit  to  discharge  the  offender,  may  order  him  to  be 
indicted  there  for  such  offence  as  the  evidence  shows  him  to  have  com- 
mitted, and  bind  him  over  for  *his  ajjpearance,  or  commit  him  r:(:rn/. 
for  trial.  If  no  distinct  offence  be  exhibited,  the  Court  may  still,  L 
if  the  evidence  warrant  it,  require  him,  as  a  measure  of  precaution,  to 
give  security  for  his  good  behaviour,  and  on  failure,  commit  him  as  a 
suspected  person.  If  this  view  be  correct,  the  Acts  are  divested  of  those 
features  wliicli  are  apt  to  be  regarded  as  rigorous  and  oppressive.  It 
follows,  I  think,  that  a  proceeding  for  vagrancy,  would  not  be  barred  by 
a  prosecution  ])eiMMng  in  the  Court  of  Sessions  for  gaming.  If  the 
security  is  given  to  the  justices,  there  is  an  end  of  the  proceeding  ;  for 
it  is  clear,  that  it  is  not  meant  as  a  punishment  for  the  offence  of  gaming. 
The  Act  of  1836,  seems  to  contem])late  a  ))rosccution  for  that  offence 
sej)arately,  by  making  a  provision  for  increasing  the  costs. 

The  Court  is  of  opinion  that  the  Judge  below  was  right  to  refuse  the 
prohibition  ;  and  the  motion  here,  to  reverse  his  decision,  is  dismissed. 

Evans,  Richardson,  Johnson  and  Johnston,  concurred. 

Gantt,  O'Xeall  and  Butler,  dissenting. 

Black,  for  the  motion.     Edward,  Solicitor,  contra. 

See  Sup.,  72;  Commissioners  of  New  Town  Cut  vs.  Seabroolc.  2  Strob.,  564; 
Crosby  vs.  Warren,  1  Rich.,  385,  390.     An. 


llEPOPiTS  OF  CASES  AT  LAW, 


ARGUED  AND  DETERMINED 


COURT    OF    APPEALS 

AND 

COURT  OF   ERRORS 

OP 

SOUTH  CAIIOLIXA, 

FROM  NOVEMBER,  1841,  TO  MAY,  1842,  BOTH  INCLUSIVE. 

[WITH  AN  ArPl'^NDIX  ( ONTVlNINii  SJMK  E\RLlin  CASES.] 

BY   J.   J.    M' MULL  AN, 


STATE    REPOUTER. 


VOLUME   IL     SECOND   EDITION, 


CHARLESTON,  S.  C. 
M'CABTEE  k  DAWSOX,  116  MEETING  STREET. 

1859. 


[IN  THE  FIRST  EDITION.] 

TO  THE  PUBLIC. 


This  volume  of  Law  Reports  closes  my  labors  as  State  Reporter. 

How  far  I  have  discharged  my  duty,  to  the  satisfaction  of  the 
State,  I  am  unable  to  determine.  But  if  I  have  failed,  in  any  one 
particular,  to  do  my  duty,  it  was  from  causes  over  which  I  had 
DO  control,  or  from  a  want  of  judgment  in  the  performance  of 
them. 

I  have  to  ask,  again,  the  indulgence  of  the  profession,  for  the 
great  delay  in  the  appearance  of  this  volume.  It  has  been  delayed 
far  beyond  what  I  had  intended ;  but  it  was  not  from  any  wilful 
neglect,  that  it  has  been  delayed,  but  rather  from  such  an  indis- 
position, as  would  not  allow  me  to  perform  labor  of  the  kind  that 
was  necessary  to  its  completion.  I  trust  that  no  serious  loss  has 
been  occasioned  by  its  non-appearance,  and  that,  though  late  in 
its  appearance,  it  will  come  in  such  a  shape  as  to  be  acceptable. 
A  few  of  the  omitted  cases,  promised,  are  subjoined.  And  should 
the  health  of  the  undersigned,  and  a  sufiicient  inducement  be 
offered — he  will  endeavor,  (although  not  now  in  the  service  of  the 
State)  to  collect  and  present  another  volume  of  Law  Cases,  omitted 
by  previous  Reporters,  since  1830.  Perhaps  a  few  Equity  Cases 
may  also  be  given. 

J.  J.  M'MULLAN. 

Lancaster  C.  IT.,  October  1,  1843. 


CASES    AT    LAW 

AUGUEU  A^'D  DETERMINED  U  THE 

LAW  COURT  OF  APPEALS  OF  SOUTH  CAROLIXA. 

Coluntbia,  ^cccmbcr,  1841. 


JUDGES  PRESENT  DURING  THE  TERM. 

HON.  RICHARD   CTANTT,(a)  HON.  BAYLIS   J.  EARLE, 
"      JOHN   S.  RICHARDSON,  "      ANDREW  PICKENS   BUTLER. 

"      JOHN   BOLTON   O'NEALL,  "      DAVID  LEWIS  WARDLAW.(/0 

"      JOSIAH  J.  EVANS, 


The  State  of  South  Carolina  vs.  D.  G.  Wylie,  Sheriff,  et  al. 

1.  The  Act  of  1839,  regulating  the  office  and  duties  of  sheriffs  of  this  State,  and 
dispensing  with  the  return  of  "  nulla  bona''  heretofore  required  against  sheriffs, 
before  commencing  actions  on  their  official  bonds  against  the  securities,  does 
not  do  away  the  necessity  *of  the  return  of  ^^  nulla  bona''  where  the  sheriff  ^^^ 
was  elected  and  gave  bond  before  the  passage  of  the  Act  of  1839.  ^ 

2.  The  Act  of  1839  is  prospective,  and  applies  only  to  those  sheriffs  who  have 
been  elected  and  given  bond  since  its  passage. 

3.  Where  the  sheriff,  making  tlie  return  of  executions  in  his  office,  to  the  clerk 
of  the  Court,  previous  to  each  Court,  as  required  by  law,  omits  to  make  the 
proper  return,  he  will  not  be  permitted  to  make  it  subsequently,  '^  nunc  pro 
tunc." 

Before  Gantt,  J.,  at  Fairfield,  Fall  Terra,  1841 ;  who  reports  the  follow- 
ing as  the  facts  of  this  case. 

This  was  an  action  of  debt,  brought  on  the  official  bond  given  by  the 
defendant,  David  Wylie,  the  Sheritf  of  Fairfield  district,  and  tiie  other 
defendants,  as  his  sureties. 

On  the  part  of  the  plaintiff,  the  following  testimony  was  ofifered  : 
1.  A  certified  copy  of  the  official  bond  given  by  said  Wylie,  and  the 
other  defendants,  as  his  sureties,  dated  October,  1836. 

(a)  Resigned  during  the  Term. 

(b)  Elected  during  the  Term,  in  the  place  of  Hon.  R.  Gantt,  resigned.  He 
qualified,  and  took  his  seat  with  the  Court,  as  one  of  the  Appeal  Judges.  [All 
the  cases  of  this  term,  in  which  his  concurrence  or  dissent  does  not  appear,  were 
decided  before  he  took  his  seat :  the  cases  not  being  rei^orted  in  the  order  of  the 
time  of  decision.     An.} 


*3] 


352  COLUMBIA,    DECEMBEK,    1841.       VOL.  II.  [*2 

2,  Sundry  unsatisBed  writs  o^  fieri  facias  against  said  Wylie,  some  of 
which  wei'e  lodg-cd  in  the  office  of  the  Coroner  of  Fairfield  district,  in 
July,  1840,  and  others  lodged  in  the  office  of  the  present  Sheriff  of  Fair- 
field district,  in  November,  1840. 

3  The  book  of  returns  made  by  the  present  Sheriff  of  Fairfield, 
according  to  the  provisions  of  tlie  Act  of  1827.  entitled  "An  Act  to  pre- 
vent the  frequent  renewals  of  executions,"  marked  on  the  outside  as 
liaving  been  filed  in  the  clerk's  office^  in  February,  1841.  Three  of  the 
executions  against  David  G.  Wylie,  and  which  are  still  unsatisfied,  are 
contained  in  this  book  of  returns  ;  but  no  entry  is  made  as  to  the  state  or 
condition  of  said  executions,  nor  any  reason  given  why  the  money  had 
not  been  made.  In  the  progress  of  the  trial,  plaintiff's  counsel  moved 
for  leave  to  amend  these  returns,  by  permitting  the  Sheriff  to  fill  the 
blank,  nunc  pro  tunc,  according  to  the  facts  then  existing;  or  for  leave 
to  examine  him  as  a  witness,  in  regard  to  those  facts. 

Sundry  writs  of  capias  ad  satisfaciendum,  against  said  Wylie,  upon 
which  he  was  arrested  on  the  7th  April,  1841. 

The  petition  of  said  Wylie,  for  the  benefit  of  the  prison  bounds'  Act, 
together  with  the  sciiedule  and  assignment  *of  the  whole  of  his 
estate  and  effects,  was  also  given  in  evidence. 

Plaintiff  was  prepared  to  prove  breaches  of  the  condition  of  the  bond  ; 
but  the  defendant's  counsel  moved  for  a  nonsuit,  on  the  ground,  that 
there  was  no  return  of  nulla  bona  on  any  fi.  fa.  against  said  Wylie, 
before  the  commencement  of  this  suit;  and  the  motion  was  granted  by 
the  Court. 

From  the  order  of  nonsuit,  the  plaintiff  appealed,  on  the  grounds  : 

1.  Because  a  return  oi^  nulla  boiui  on  aji.j'a.  against  said  David  G.  Wylie, 
was  not  necessary  to  the  maintenance  of  this  suit, 

2.  Because  there  was  sufficient  return  of  tinal  process  against  said  David  G. 
Wylie,  according  to  the  Act  of  Assembly  of  1827,  to  sustain  this  action  ;  and 
if  iluit  return  was  defective,  leave  ought  to  have  been  granted  to  amend  the 
same. 

3.  Because  there  was  sufficient  evidence  of  the  insolvency  of  said  David  G. 
Wylie,  for  the  maintenance  of  the  above  suit  against  his  sureties. 

McCall,  for  the  motion.  Cited  the  Act  of  1839,  and  contended  that  by  this  Act 
tht!  Act  (if  1795  was  repealed,  and  the  return  of  nulla  bona  was  dispensed  with. 
Tlio  words  "the  bonds  may  be  sued  at  any  time,"  makes  no  distinction  between 
j.rincipals  or  sureties.  Cited  Bac  Al).  Tit." Stat.  Letter  F.  The  later  intention  of 
tlie  Lcf,nslature  mu.st  prevail.  He  insisted  tliat  where  statutes  are  inconsistant, 
tlie  first  Kives  place  to  the  last ;  4  Sec.  Act  1839  ;  7  Stat,  at  Large,  26.  The  return 
of  nulla  bona  is  a  mere  matter  of  evidence,  to  be  required  by  tlie  Court,  before  it 
can  jiroccr-d  to  judgment  against  the  sureties.  Tlie  Act  of  1839  repeals  that  pro- 
vision. Tlie  Ai-t  dispensing  with  ])roof  by  a  subscribing  witness,  is  analogous  to 
tills,  and  yet  it  never  lias  been  held,  that  on  a  contract,  before  that  Act,  it  could 
not  Im;  ]>roved  liy  proof  of  handwriting. 

At  th<'  iiassage  of  the  Act  of  1839,  defendants  had  incurred  no  liability,  and 
there  was  no  suit  brought;  Brev.  24-GO ;  G  Bac.  383,   Stat.  Letter  F.  50;  pari 
viateria,  r,  T.  R.  l(j. 
*41       *'''be  Act  of  1839,  regulating  returns,  dispenses  with  nulla  bona  returns. 

Ah  to  t)ie  ameiidnuint  of  tlie  return,  cited  1  Taunt.  23,  221 ;  3  Mass.  Rep. 
230;  2  Htra.  1123;  Han.  UH ;  Repeal  of  Stat.;  1  McMulL  09,  338;  Dud.  1G5;  3 
Hill,  19U;  Bail.  E<i.  Rep.  208. 


WoodwanI,  for  th(^  motion,  also  cited,  2  Faust.  8  ;  Act  95,  Act  27,  55,  do.  2' 
21— it.  1839  ;  7  Stat,  at  L.  20.     Mr.  Woodward  said,  the  Act  of  1795  did  not 


29— 
re- 


'4] 


STATE   VS,    WYLIE,  SUERIFF,    ET    AL.  353 


quire  positive  evidence  of  insolvency ;  a  mere  prima  Jarie  showing,  as  a  return  of 
nuUa  bona,  is  sufficient.  If  the  insolvency  of  the  sheriff  can  be  proved  by  the 
party,  or  that  of  the  principal,  it  is  higher  evidence,  and  ought  to  be  allowed  in 
lieii  of  nulla  bona.  If  the  return  of  nulla  bona  is  merely  of  the  Ipx  fori,  then, 
indeed,  the  Act  of  1839  is  the  rule.  When  the  return  of  the  sheriff  is  to  operate 
as  evidence,  then  his  I'eturn  may  be  amended  nunc  pro  tunc.  There  is  a  distinc- 
tion between  a  proviso  and  an  exception ;  the  former  qualifies,  the  latter  takes 
something  out  of  it. 

Mr.  W.  contended,  that  looking  at  the  Act  of  1795,  as  he  had  suggested,  and 
the  Act  of  1829  repealed  it ;  it  operates  upon  all  the  officers,  and  therefore  the 
rule  must  be  the  same  as  to  all.  He  cited  here,  9  L.  Lib.  7U7,  Marg.  page.  In 
construing  statutes,  pari  materia,  where,  in  some  it  is  omitted,  and  in  others  it  is 
inserted,  the  omission  is  to  be  regarded  as  designed. 

Mr.  Clarke,  contra,  contended  that  the  Act  of  1795  was  the  rule  that  must 
govern  this  case.  The  sheriff's  bond  was  given  in  1836.  The  words,  "shall  sue 
at  all  times,"  are  in  the  Act  of  '95,  as  well  as  in  the  Act  of  '29.  He  contended 
that  there  was  no  repugnancy  between  the  Acts  of  '95  and  '39,  although  it  does 
omit  the  nulla  bona  return.  If  it  had  been  part  of  the  bond,  he  admits  it  would 
have  been  repealed ;  but  as  it  is  only  a  legal  regulation  outside  of  the  bond,  it  is 
not  repealed.  The  Act  of  '39  cannot  have  effect,  for  it  is  a  material  part  of  the 
contract.  Cited  1  Kent's  Com.  454,  Act,  27,  65.  The  return  does  not  conform  to 
it.  The  action  was  brought  2Gth  March,  1841,  and  Wylie,  tlie  sheriff,  applied  for 
his  discharge  under  the  insolvent  delitors'  Act,  in  April,  1841.  His  assignment 
*was  dated  13th  April,  1841.  Tliis  was  subsequent  to  the  commencement  of  j-^- 
the  action.  •- 

C((Wa,  jper  Wardlaw,  J.  "An  Act  concerning  the  office  of  Sheriff," 
passed  1795,  (5  Stat,  at  Large,  257,)  directs  that  every  person  elected  to 
the  office  of  Sheriff,  shall  "  enter  into  a  bond  drawn  payable  to  the  Trea- 
surers of  the  State  for  the  time  being,  and  their  successors,  conditioned 
for  the  due  and  faithful  discharge  of  the  duties  of  the  said  office :  "  that 
the  sureties  shall,  severally,  be  liable,  "  each  one  for  his  equal  part  of  the 
whole  sum  "  of  the  penalty,  and  no  more  ;  and  the  third  section  is  as  fol- 
lows :  "  That  the  bonds  to  be  given  by  the  Sheriffs,  according  to  this 
Act,  and  to  be  deposited  in  the  treasury,  may  at  all  times  be  sued  for  by 
the  public,  or  any  private  person  who  shall  or  may  think  themselves 
aggrieved  by  any  misconduct  of  any  Sheriff;  for  which  purpose,  the  Trea- 
surers for  the  time  being,  and  each  of  them,  upon  application  at  the  trea- 
sury office,  shall  deliver  to  any  person  api)lying  therefor,  and  paying  the 
fees  for  doing  the  same,  an  exact  and  certifted  copy  of  any  Sheriff's  bond 
there  deposited ;  which  copy,  so  certified,  shall  be  good  and  sufficient 
evidence,  in  all  the  Courts  of  this  State,  in  any  suits  so  to  be  instituted  : 
jxroviJcd,  nevertheless,  it  shall  not  be  lawful  for  any  person  who  shall 
conceive  himself  aggrieved  by  any  Sheriff,  to  commence  any  action  against 
the  security  hereby  required  to  be  given,  until  a  return  of  nulla  bona 
shall  have  been  made  on  some  execution  to  be  issued  against  the  said 
Sheriff,  either  at  the  suit  of  the  person  aggrieved,  or  some  other  person.'" 
"An  Act  concerning  the  bonds  of  public  officers,"  passed  1829,  (6  Stat, 
at  Large,  383,)  prescribes  the  form  of  a  bond  to  be  given  by  every  public 
officer  from  whom  bond  is  required,  provides  for  the  distribution  of  blanks, 
exacts  from  all  an  oath,  in  nearly  the  same  words  which  a  section  of  the 
Act  of  1795  employs,  in  prescribing  an  additional  condition  of  a  Sheriff's 
bond,  and  the  5th  section  is  as  follows  :  "  The  bond  of  any  public  officer 
iu  this  State  may,  at  all  times,  be  sued  on  by  the  public,  any  corporation, 
or  private  person,  aggrieved  by  any  misconduct  of  any  such  public  officer : 
YoL.  I.— 24 


354  COLUMBIA,    DECEMBER,    1841.      VOL.  II.  [*5 

for  which  purpose,  the  Treasurers  for  the  time  being  shall  deliver  to  any 
5^ ,-.  person  applying  therefor,  and  paj'ing-  *the  fees  for  doing  the  same,  an 
^-1  exact  and  certiiied  copy  of  the  bond  of  such  public  officer  there  depos- 
ited ;  which  copy,  so  certified,  shall  be  good  and  sufficient  evidence  in  all 
suits  to  be  instituted  in  any  Courts  of  the  State."  "An  Act  concerning 
the  office,  duties  and  liabilities  of  Sheriffs,"  passed  1S39,  (Pamph.  p.  26,) 
in  the  3rd  section,  directs,  that  the  bonds  of  the  Sheriffs  shall  be  given  in 
certain  penalties,  and  the  4th  section  is  as  follows  :  "  Every  surety  to 
the  bond  of  a  Sheriff  shall  be  liable  for  the  whole  penal  sum  therein  ex- 
pressed ;  nor  shall  any  return  of  nulla  bona,  on  any  execution  against 
the  sheriff,  be  henceforth  necessary  before  legal  resort  may  be  had  against 
his  suretif^s,  or  any  of  them  ;  Provided,  that  there  shall  be  liability  to 
contribution  among  the  sureties  aforesaid,  as  in  cases  of  joint  suretyship." 

Upon  the  first  ground  of  appeal,  it  has  been  contended  that  the  return 
of  nulla  bona  required  by  the  Act  of  1Y95,  is  either  repugnant  to  the 
Act  of  1829,  or,  being  expressly  made  thenceforth  unnecessary  by  the 
Act  of  1839,  is  immaterial  in  suits,  even  upon  bonds  of  date  prior  to  the 
latter  Act.  The  repugnancy  to  the  Act  of  1829,  has  been  pressed  with 
great  force ;  and,  as  the  Court  is  divided,  and  the  argument  has  been 
strong,  the  subject  will  be  carefully  considered.  The  requisition  of  the 
return  of  nulla  bona  having,  in  the  Act  of  1795,  been  made  in  the  form 
of  a  proviso,  the  flrgument  has  been,  that  a  proviso  is  a  qualification  of 
a  previous  rule  :  that  the  rule  admitted  suits  "  at  all  times,"  and  the  pro- 
viso restraining  the  commencement  of  a  suit  against  the  sureties,  "until 
a  return  of  nulla  bona  shall  have  been  made,''  is  a  special  qualification  of 
the  rule  as  to  the  time  when  suits  may  be  commenced  ;  and  the  re-enact- 
ment of  the  rule  in  1829,  without  tlie  proviso,  is  a  repeal  of  the  proviso, 
inasmuch  as  the  qualification  provided  would  be  inconsistent  with  the  rule 
re-enacted  without  qualification. 

The  meaning  of  the  Legislature,  however,  is  not  always  to  be  obtained 
by  an  exact  attention  to  the  form  of  its  enactment.  A  proviso  may  be  a 
qualification  of  a  rule,  but  under  a  "profiVZec?,  nevertheless,^\a)  may 
l)e  found  sometimes  a  proviso,  sometimes  an  exception,  sometimes  the 
exclusion  of  an  inference,  and  sometimes  an  independent  provision. 
5j,,^1  *Where  there  is  a  substantive  expression  of  the  legislative  will,  it 

-'  will  be  influential,  even  although  the  words  conveying  it  are  seemingly 
dependent  upon  others  that  are  afterwards  repealed,  or  enacted  in  a  differ- 
ent form.  The  main  purpose  of  the  section  of  the  Act  of  1795,  wdiich 
has  l)ecn  quoted,  seems  to  have  been  to  allow  all  persons  aggrieved,  the 
use  of  the  names  of  the  public  officers,  to  whom  the  bonds  of  Sheriffs 
were  to  bo  payable,  and  to  facilitate  the  proof  in  actions  upon  those 
bonds ;  as  the  5th  section  of  the  Act  of  1829  was  intended,  after  a  change 
in  the  form  of  the  bonds,  to  allow  the  use  of  the  name  of  the  State,  and 
to  extend  to  the  bonds  of  all  public  oflicers  the  facilities  before  provided, 
as  to  Sheriff's  bonds.  Ibit  the  "provided  nevertheless,"  &c.,  in  the 
Act  of  1795,  is  no  (pialification  of  a  previous  rule ;  it  is,  in  effect,  an 
t'liactniont,  that  in  a  suit  upon  a  Sheriff's  bond,  no  recovery  should  be  had 
ngaiiist  a  surety,  unless,  before  the  commencement  of  the  suit,  a  return  of 
nulla  bona  hnd  been  made  against  the  Sheriff".     Instead  of  standing,  in 

('/)  Dpinion  of  Wardlaw,  J.,  in  Mitchell  vs.  Bo^an,  11  Rich.     An. 


*7]  STATE   VS.   WYLIE,  SHERIFF,    ET    AL.  355 

form,  as  independent  as  it  is  in  substance,  tliis  enactment  is,  by  a  verbal 
connexion,  appended  to  tlie  section  whose  main  purpose  is  before  indica- 
ted ;  but  a  strict  adherence  to  the  words  would  give  us  an  inadequate 
idea  of  the  meaning.  "It  shall  not  be  lawful  to  commence  any  action 
until  a  return,"  &c.  Was  the  Treasurer  to  inquire  as  to  the  I'eturn,  be- 
fore giving  a  copy  of  the  bond  ?  Was  the  unlawfulness  of  connuencing 
the  action  to  be  otherwise  punished  than  by  the  failure  of  the  action  ?  The 
provision  appended  related  to  the  nature  of  the  security's  liability,  not 
to  the  mode  in  which  persons  aggrieved  should  obtain  redress ;  and 
when  the  Act  of  1829  prescribed  the  form  of  proceeding,  and  proof  as  to 
the  bonds  of  all  public  officers,  the  nature  of  the  surety's  liability,  in  case 
of  a  Sheriff's  bond,  was  no  more  connected  with  the  subject  under  consid- 
eration, nor  more,  probably,  in  contemplation  of  the  Legislature,  than  was 
that  other  provision  of  the  Act  of  1795,  peculiar  to  a  Sheriff's  surety,  which 
limited  the  extent  of  his  liability  to  an  equal  share  of  the  Ijond.  Under  this 
view  of  the  Act  of  1829,  the  regulation  of  1795,  as  to  the  nature  of  the  sure- 
ty's liability,  was,  in  1836,  (when  the  bond  sued  on  in  the  case  before  us,  wa  ; 
executed,)  a  part  of  *the  contract ;  and  to  change  the  collateral  oldi-  r-^^ 
gation  thus  assumed  by  the  surety,  in  the  ordinary  responsibility  of  a  L 
co-obligor,  would  be  like  converting  an  endorser  into  a  joint  and  several 
maker.  It  is  not  to  he  lightly  presumed  that  the  Legislature  in  1839, 
intended  such  a  violation  of  contract ;  and  by  a  just  construction  of  what 
was  then  enacted,  it  seems  that  no  retrospective  operation,  so  as  to  em- 
brace bonds  before  that  time  given,  was  intended.  "  Every  surety  to  the 
bond  of  a  Sheriff,  shall  be  liable  for  the  whole  penal  sum  therein  ex- 
pressed," is  a  provision  apparently  general,  eml^racing  as  well  sureties  to 
bonds  before  given,  as  those  to  bonds  afterwards  to  be  given  ;  yet  it  has 
been  conceded  that  this  provision  was  intended  to  extend  only  to  bonds 
thereafter  to  be  given.  By  its  juxtaposition,  it  is  connected  with  the 
previous  section,  which  speaks  of  bonds  "to  be  given,"  and  the  injustice 
jf  extending  it  further,  is  too  plain  to  be  imputed  to  the  Legislature.  In 
the  next  member  of  the  sentence,  "nor  shall  any  return  of  nulla  bona, 
on  any  excution  against  the  Sheriff,  be  henceforth  necessary,"  the  Sheriff 
meant,  is  the  Sheriff  before  mentioned — the  Sheriff  hereafter  to  give  bond 
— and  the  resort  is  permitted  to  his  sureties.  The  " provided,^^  &c., 
which  follows  is  an  exclusion  of  any  inference  against  the  right  of  com- 
pelling contribution,  which  relates  only  to  the  first  member  of  the  sen- 
tence, thereby  making  it  more  plain,  that  the  intervening  member  is  to 
operate  at  the  same  time,  and  on  the  same  subjects.  The  whole  4th  sec- 
tion of  the  Act  of  1839,  when  analyzed,  provides  that  neither  the  pre- 
existing regulation  as  to  the  extent  of  the  surety's  liability,  nor  the  pre- 
existing regulation  as  to  the  nature  of  his  liability,  shall  be  applicable  to 
bonds  afterwards  to  be  given,  but  that  thence  no  inference  shall  arise  un- 
favorable to  the  right  of  compelling  contribution.  Viewed  in  this  light, 
the  repeal  of  the  pre-existing  regulations,  is  a  legislative  exposition,  de- 
claring their  force  until  that  time.  The  Act  of  1839  was  intended  to  group 
together  and  digest  all  the  statutory  law  as  to  the  Sheriffs,  and  necessa- 
rily contained  the  repeal  of  regulations  which,  until  that  time,  had  existed, 
and  then  were  thought  inexpedient,  but  cannot  well  be  supposed  to  con- 
tain a  repetition  of  repeals  before  enacted,  of  regulations  that  had  p^^. 
once  been  of  force,  but  had  been  abrogated  *teu  years  before  the  L 


356  COLUMBIA,   DECEMBER,    1841.      VOL.  II.  [*9 

dio-est  was  proposed.  It  was  tlieu  fart  of  the  contract  made  by  the  sure- 
ties before  us,  that  they  should  not  be  liable  to  recovery,  unless  a  return 
of  nulla  bona  had  been  made  against  their  principal,  before  action 
lirought  against  them.  'No  such  return  was  made,  and  it  could  no  more 
be  supplied  by  an  act  nunc  pro  tunc,  than  could  a  demand,  or  any  other 
matter,  which  is  necessary  to  the  right  of  action. 

That  the  return  of  nulla  bona  was  required  only  as  evidence  of  insol- 
vency, does  not  appear  in  the  statute  requiring  it ;  there  may  be  well 
conceived  an  advantage  to  the  sureties,  in  having  the  return  required, 
rather  than  proof  of  insolvency  by  reputation,  or  than  even  an  assign- 
ment under  the  insolvent  laws.  Sufficient,  however,  it  is  to  say,  that  the 
sureties  had  a  right  to  insist  upon  their  contract,  and  to  require  what  the 
law  had  required  as  a  condition,  precedent  to  their  liability.  The  motion 
is  dismissed. 

Richardson,  Evans,  Earle,  JJ.,  concurred. 

O'Neall,  J.,  does  not  agree  to  the  law  laid  down  in  this  case. 

Butler,  J.,  absent. 

See  5  Rich.  74.     An. 


*10]  *  Felix  Crosslin  vs.  Reed  and  Reed.  Lamar  and  Daniel  vs. 
The  Same.     Peter  Lamar  lvs.  The  Same.(o) 

1.  The  8th  sect,  of  the  attachment  Act,  passed  1744,  contains  the  provision  "that 
if,  at  any  time,  within  the  j-ear  and  day,  any  person  shall  appear  as  attorney, 
to  the  absent  debtor,  and  will  pnt  in  bail,  to  answer  the  action,  aud  pay  the 
condemnation,"  then  the  attachmrnt  shall  be  dissolved. 

2.  The  4th  sect,  of  the  Act  of  17s5,  provides,  "that  all  attachments  shall  be  re- 
pleviable,  by  appearance,  and  putting  in  special  bail,  if,  by  the  Court,  ruled  so 
to  do." 

3.  Tliese  provisions  constitute  the  law  upon  the  subject.  And  the  Act  of  1839  has 
not  altered  the  old  law.  Vide,  3  Mc  V.  347.  Fife  <$'  Co.  vs.  Clarke,  as  illustra- 
tive of  the  laic. 

Before  O'Xeall,  J.,  at  Abbeville,  Fall  Term,  1841. 

These  were  motions  made  before  his  Honor,  Judge  O'Jfeall,  by  the 
defendants,  after  having-  entered  special  bail  before  the  clerks  of  the 
court ;  first,  for  leave  to  justify  in  open  court ;  secondly,  to  dissolve  the 
foreign  attachments  that  had  been  levied  by  the  sheriff.  Both  of  which 
motions  were  granted. 

Tiie  presiding  Judge,  after  notice  of  appeal  furnished  the  grounds  of 
his  decision,  which  is  herewith  subjoined  ;  which,  with  the  grounds  of 
appeal,  will  render  the  opinion  of  the  Court  upon  the  case,  satisfactory. 

Decision  of  the  Court. 

The  bail  pieces,  oflored  in  these  cases,  have  been  ol)jected  to,  because 

they  have  tlic_  condition  "iliat  if  the  defendants  be  condemned,  in  the 

action    aforesaid,  tlicy  shall   pay  the  condemnation   money,  or  surrender 

themselves  prisoners,  to  the  sherilf  of  the  district,  aforesaid,""  when,  accord- 

(")  y.  C.  again.     Infra  346.     An. 


*10]        CROSSLIN  ET  AL.  VS.    REED  &  REED.         357 

ing:  to  the  Act  of  1839,  it  is  contended,  that  it  should  have  been,  "that 
if  the  defendants  be  condemned,  in  the  action  aforesaid,  they  shall  pay 
the  condemnation  money. "(a)  The  Act  of  '39  provides  :  "and  when 
the  defendant,  in  cases  of  attachment,  by  the  Court,  ruled  to  put  in  special 
bail,  before  appearance,  or  otherwise,  desiring  to  appear  in  that  manner, 
shall  in  person,  or  by  attorney,  apply  within  the  proper  time,  to  put  in 
bail,  to  answer  the  action  and  pay  the  condemnation,  the  clerk  shall, 
thereupon,  take  such  bail." 

*The  eighth  section  of  the  Act  of  1T44,(A)  contains  the  pro-  p^,, 
vision,  that  "  if  at  any  time  within  the  year  and  day,  any  person  ^ 
shall  appear  as  attorney  to  the  absent  debtor,  and  will  put  in  bail  to 
answer  the  action,  and  pay  the  condemnation,"  then  the  attachment  shall 
be  dissolved.  The  fourth  section  of  the  Act  of  1785,  provides  "  that  all 
attachments  shall  be  repleviable  by  appearance,  and  putting  in  special 
bail,  if  by  the  Court  ruled  so  to  do. "(c) 

These  provisions  constitute  the  law  on  which  the  Court  passed  in  Fife 
(t  Go.  vs.  Clark,  3  McCord,  347,  and  declared  that  a  recognizance,  con- 
ditioned to  pay  the  condemnation  and  costs,  "  or  surrender  himself  to  the 
custody  of  the  sheriff,"  was  a  compliance  therewith.  Here  it  ought  to 
be  remarked,  that  the  condition  to  pay  the  condemnation  money,  covers 
the  debt  and  costs,  as  well  as  the  words  "  condemnation  and  costs,"  so 
that  the  bail  pieces  here,  may  be  regarded  as  having  the  same  condition 
as  that  in  the  case  of  Fife  d-  Co.  vs.  Clark,  and  if  the  Act  of  '39  has 
not  altered  the  old  law,  I  am  bound  to  conform  to  that  decision. 

I  think  it  has  not ;  for  it  speaks  of  being  "  ruled,  to  put  in  special  bail 
or  otherwise  desiring  to  appear  in  that  manner."  Which  shows  that  it 
was  the  purpose  of  the  Legislature  to  retain  the  old  security,  and  not  in- 
troduce a  new  one.  And  although  they  speak  of  putting  in  "  bail  to 
answer  the  action,  and  pay  the  condemnation,"  it  cannot  be  supposed, 
that  they  intended  to  alter  the  form  of  the  bail  piece.  For  where  the 
Legislature  use  technical  words,  they  must  be  understood  in  their  settled 
legal  sense.  The  terms  "bail  to  answer  the  action,  and  pay  condemna- 
tion," is  a  description  of  the  bail  })iece  required  for  special  bail  at  com- 
mon law. 

Hut  independent  of  this  view,  the  law  still  stands,  that  "  all  attach- 
ments shall  be  repleviable  by  appearance,  and  putting  in  special  bail,  if, 
by  the  Court,  ruled  so  to  do."  The  meaning  of  the  terms,  "if,  by 
the  court  ruled  so  to  do,"  is  nothing  more  than  that  the  Court  may 
order  that  the  defendants  shall  have  leave  to  appear  on  entering  special 
bail.  It  is  no  objection  to  this,  that  the  recognizance  was  executed  be- 
fore the  motion.  The  Act  of  '39  simply  directs,  when  the  defendants 
are  ruled  to  put  in  *special  bail,  that  the  clerk  shall  take  such  bail.  r-^-,cy 
He  has  taken  the  recognizance,  and  the  bail  are  now  before  me,  to  '-  "" 
justify.  This  is  sufficient.  Let  the  bail  justify  ;  and  thereupon,  the 
defendants  may  take  their  motion,  to  appear  and  dissolve  the  attachments. 

The  plaintiffs  in  the  above  cases,  appeal,  and  will  move  to  reverse  the 
decision  of  the  presiding  Judge,  on  the  following  grounds  : 

1st.  Because  his  Honor  erred  in  holding  that  defendants,  in  foreign  attach- 
ment, can  appear  by  putting  in  special  bail. 

(rt)  11  Stat.  76,  §  21.     An.  (h)  3  Stat.,  620.     An. 

(c)  7  Stat.,  214.     County  Court  Act.     An. 


358  COLUMBIA,    DECEMBER,    1841.      VOL.  IL  [*12 

2d.  Because  the  only  mode,  in  whicli  defendants,  in  attachment,  can  be 
permitted  to  appear  and  dissolve  the  attachment,  is  by  putting  in  bail,  with  the 
condition  absolute,  "  to  answer  the  action,  and  pay  the  condemnation." 

3d.  Because  the  proceeding  was  irregular  and  premature.  For,  conceding 
that  defendants,  in  attachment,  may  appear  by  special  bail,  it  is  only  when 
"  ruled  by  the  Court  so  to  do."     No  such  order  was  obtained. 

4th.  Because  the  motion  of  plaiutilfs,  to  discontinue,  as  to  Jane  Reed,  should 
have  had  precedence. 

5th.  Because  the  proceeding  was  otherwise  irregular,  and  the  decisions 
contrary  to  law. 

Curia,  per  O'Neall,  J.     I  have  reviewed  my  decision  below,  and 
have  given  to  the  argument  of  the  defendants'  counsel,  that  consideration, 
which  the  importance  of  a  well  argued  legal  question  always  demands.   I 
have  not  been  able  to  detect  any  error  in  the  judgment  below.     The 
fourth  ground  of  the  motion  is  unconnected  with  the  main  question,  it 
will  be  lirst  disposed  of.     The  application  of  the  defendants,  "  to  let  the 
bail  justify,"  was  made  before  the  motion  for  leave  to  discontinue,  as  to 
Mrs.  Reed.     It  was,  therefore,  in  point  of  order  entitled  to  be  first  heard. 
As  soon  as  the  bail  justified,  the  other  order  for  the  dissolution  of  the 
attachment,  followed  as  matter  of  legal  consequence.     For,  by  law,  as 
soon  as  special  bail  is  put  in,  the  attachment  is  dissolved.     I  have  never 
been  able  to  discover  why  the  motion  to  discontinue  as  to  Mrs.  Reed, 
^,o-i  should  have  been  so  zealously  pressed,  as  a  2)rivileged  *motion.    If 
-'  it  was  intended  to  obtain  some  legal,  technical  advantage,  such  as 
that  Mrs.  Reed  had  executed  the  bail  piece,  when  she  was  not  a  party, 
this  was  reason  enough,  why  the  Court  should  have  first  permitted  the 
bail  to  justify  and  dissolve  the  attachment.     For  the  putting  in  bail 
made  the  proceeding  in  rem,  a  proceeding  in  personam,  and  the  parties 
after  it,  stood  upon  the  same  footing,  which  they  would  have  occupied, 
if  they  had  been  served  with  process.     This  was  making  the  parties  equal 
in  Court.     And  after  the  attachment  was  dissolved,  the  plaintifts  could 
as  well  discontinue,  as  to  Mrs.   Reed,  as  before.     The  other  grounds 
present  the  question  which  was  decided  on  the  circuit,  and  it  might  be 
sufficient  to  refer  to  the  judgment  below,  for  the  reasons  of  the  judgment 
here;  but  it  may  be  well  to  add  to  them  some  other  views,  which  the 
argument  on  the  appeal  and  subsequent  reflection  have  suggested.     The 
terms  bail,  and  special  bail,  used  in  the  Act  of  '39,  are  terms  well  under- 
stood in  their  legal  sense.     The  term  bail,  in  its  ordinary  legal  sense,  is 
the  delivery  of  the  defendant  to  his  securities,  or  keepers  ;  as  it  is  usually 
applied  in  this  state,  it  is  understood  to  mean,  bail  below,  or  bail  to  the 
Mieriir,  wliicli,  by  our  act,  has  been  turned  into  bail  above,  or  bail  lo  the 
action.     Tlie  Act  of  '.31),  if  it  had  stopped  at  "  bail  to  answer  the  action," 
w«juld  have  merely  descri!)ed,  "  bail  below,  or  bail  to  the  Sherifl","  to 
obviate  tliat  they  added  the  words,  "and  pay  the  condemnation,"  which 
was  a  delinition  of  special  bail,  bail  above,  or  bail  to  the  action.     The 
ultachnient  of  the  defendant's  goods,  is  to  compel  him  to  appear;  and 
o]»erates  as  bail  to  the  Slierilf  at  common  law,  which  is  thus  described  in 
3d  PetersdorPs  Abridgement,  Title  JJail,  97,  marg.  page.     "The  bail 
bond  being  condili(jned  for  the  defendant's  appearance  in  Court,  on  the 
return  day  of  liie  process,  it  is  obvious,  that  in  strictness  of  law,  nothing 
can  be  a  performance  of  the  condition,  but  effecting  what  is  technically 
called  an  appearance."     The  Legislature  speak  of  "special  bail  before 


13] 


CROSSLIN  EL  AL.  VS.    REED  &  REED.         359 


appearance  or  otherwise,  desiring  to  appear  in  that  manner."  This  was 
describing  the  course  of  things  which  results  from  putting  in  bail  to  the 
action,  and  wliich  was  a  common  law  a|)pcarance.  Petersdorf  describes 
it  as  follows  :  "This  (that  is  a  technical  *appearance,)  is  eflfectu-  r^-,i 
ated,  by  putting  in  special  bail  to  the  action,  or  bail  above,  as  they  '- 
are  in  general,  denominated  in  contradistinction  to  the  bail  below,  or 
bail  to  the  Sheriff."  "Bail  above,  or  special,  may  be  described  as 
]>ersons  who  undertake  generally,  or  in  a  sum,  certain,  that  the  defend- 
ant, if  convicted,  shall  satisfy  the  plaintiff,  or  render  himself  to  proper 
custody."  It  is  plain,  therefore,  if  the  Legislature  intended  to  use  the 
words  as  legal,  technical  terms,  that  the  bail  pieces  offered  here  have  the 
proper  condition.  That  they  intended  nothing  new,  is  to  be  inferred 
from  the  fact,  that  they  have  merely  put  in  one  clause,  provisions,  which 
before  existed  in  different  acts.  The  case  of  Fife  &  Co.  vs.  Clark,  had 
given  construction  to  them,  and  settled  the  course  of  practice,  and  if  the 
Legislature  had  intended  to  introduce  a  new  rule,  they  would  have  made 
an  entirely  new  provision.  This  was  not  done,  and  hence,  I  take  it  they 
intended  the  old  construction  should  prevail.  Independent,  however,  of 
that,  I  think  that  a  bail  piece,  to  answer  the  action  and  pay  the  condem- 
nation, would  have  no  greater  legal  effect,  than  one  conditioned  "to  pay 
the  condemnation  money,  or  render  himself  prisoner  to  the  Sheriff  of  the 
district  aforesaid."  If  it  be  bail,  it  is  plain  that  the  party  may  be  sur- 
rendered. It  is  called,  "  bail  and  special  bail"  in  the  Act ;  and  in 
addition  to  this  the  bond  is  to  be  conditioned  to  answer  the  action. 
What  is  that,  unless  it  be  security  for  the  party's  appearance ;  and  if  he 
be  not  in  the  custody  of  his  keepers,  how  can  they  undertake  for  his 
appearance  ?  Again,  the  undertaking  is  to  pay  the  condemnation. 
Cannot  that  be  effected  in  two  ways  ;  1st.  By  a  payment  in  money,  and 
2d.  By  a  render  of  the  body  ?  For  while  the  body  is  in  custody,  the 
plaintiff  can  have  no  other  satisfaction.  It  is  at  least,  so  long,  to  be  re- 
garded as  the  highest  degree  of  jjayment.  If  he  docs  not  produce  sati.s- 
faction,  in  fact,  it  may  be,  that  the  party  may  resort  to  other  remedies. 
But  the  surrender  of  the  body  is  the  very  utmost  which  the  creditor  can 
demand  in  payment.  In  Young  vs.  Grey,  (Harp.  40,)  the  bond,  I  know, 
was  conditioned,  as  these  plaintiffs  would  have  this  to  be,  and  yet  in  it,  it 
was  said,  as  settled  law,  "the  bail  might  have  surrendered  their  princi- 
pal." This  being  the  case,  and  the  condition,  demanded  *by  the  r^ir 
plaintiffs  having  no  greater  legal  effect  than  that  used  I)y  the  de-  ^ 
fendants,  we  should  not  be  warranted  in  refusing  the  bail  pieces.  But  I 
am  entirely  satisfied  with  the  case  oi  Fife  d- Co.  vs.  Clark,  (3d  McCord, 
347.)  It  ruled  correctly,  that  the  form  of  the  bail  jiiece,  required  under 
the  attachment  Aets,  should  conform  to  the  form  required  for  bail  above, 
or  bail  to  the  action ;  and  the  Act  of  '39,  has  not  altered  the  law  in  this 
respect.     The  motion  to  reverse  the  decision  below  is  dismissed. 

Evans  and  Earle,  JJ.,  concurred. 

Gantt,  J.     I  heard  this  case  and  concur  in  this  opinion. 

Richardson,  J.,  absent  at  the  argument ;  but  examined  the  opinion, 
and  was  satisfied  with  it. 

IVilson  and  Martin,  for  the  motion.      Wardlaw  and  Perrin,  contra. 

See  Act  of  1843,  11  Stat.,  256;  10  Rich,,  59.     An. 


360  COLUMBIA,   DECEMBER,    1841.       VOL.  IL  [*15 


Chancy  Cherry,  (bearer,)  vs.  Jonathan  Fergeson. 

He  -who  brings  an  action,  on  a  written  instrument,  must  set  it  out  correctly  ;  and 
tliat  whicii  lie  offers  in  evidence,  must  correspond  with  that  which  he  has 
described.  The  name  of  the  original  payee,  to  a  promissory  note,  is  an  essential 
part  of  the  description.     And  a  misrecital  is  fatal. 

Before  Gantt,  J.,  Chester,  Fall  Term,  1841. 

This  was  a  summary  process,  tried  before  his  Honor,  Judge  Gantt,  at 
Chester.  Fall  Term,  1841,  of  which  his  Honor  reports,  as  follows  : 

"  S.  Process  on  note  of  hand,  purporting  to  be  payable  to  J.  Good- 
wright,  or  bearer,  for  the  sum  of  $28  50,  signed,  Jonathan  Fergeson,  and 
^,  .-,  dated  24th  June,  1840,  on  *which  is  a  credit  of  $3,  of  the  11th 
-I  December,  1840.  A  regular  appearance  had  been  entered  for  the 
defendant ;  on  the  case  being  called  for  trial,  the  counsel  for  the  defend- 
ant relied  on  a  variance  between  the  original  and  copy  process,  in  this, 
that  the  name  of  Fergeson  was  left  out  in  the  copy,  the  statement  in  the 
copy  being,  that  "Jonathan,  the  defendant,  is  indebted,  tf-c." 

"It  was  urged,  also,  that  the  person,  to  whom  the  note  was  made  pay- 
able, was  "Goodnight,  and  not  Goodwright,"  as  stated  in  the  process  ; 
as  the  said  Jonathan  had  appeared  by  attorney,  and  as  the  note  was 
made  payable  to  bearer,  in  which  character  the  plaintiff  sued  out  the 
process.     I  overruled  the  objection,  and  decreed  for  the  plaintiff." 

The  defendant  renewed  liis  motion  in  the  Appeal  Court  for  a  nonsuit,  and 
to  set  asitle  the  decree  of  his  Honor,  in  this  case,  upon  the  ground  : 

That  the  note  sued  on,  and  the  one  offered  in  evidence,  were  different.  The 
note  sued  on,  purported  to  be  made  payable  to  "John  Goodwright,"  and  the 
note  offered  in  evidence,  was  payable  to  one  '•  John  Goodnight."  The  atlcjafa 
and  jirobata,  not  corresponding,  the  Court  should  have  sustained  the  defendant's 
motion  for  a  nonsuit. 

Curia,  xter  Earle,  J.  Whether  the  omission  of  the  surname,  of  the 
defendant,  was  such  a  defect,  as  would  avail  him,  in  any  form,  it  is  imma- 
terial to  consider ;  when  he  appeared  by  attorney,  and  pleaded  to  the 
action,  he  waived  the  objection.  The  other  ground  of  the  motion  is  of 
more  weight.  He  who  brings  his  action,  on  a  written  instrument,  must 
set  it  out  correctly  ;  and  that  which  he  offers  in  evidence,  must  corres- 
pond with  that  which  he  has  described.  It  was  necessary  for  the  plaiu- 
tiff  to  set  out  in  his  process  the  note,  from  which  he  derived  his  right  of 
action,  that  the  defendant  might  know  the  nature  of  the  demand,  to  which 
he  was  called  upon  to  answer.  The  name  of  the  original  payee  was  an 
essential  part  of  the  description.  And  a  misrecital  was  fatal.  Good- 
night is  a  different  name  from  Goodwright ;  and  there  was  nothing  to 
obviate,  or  remedy  the  variance  between  the  process,  and  the  proof.  The 
*lf-|  plniiitiff,  therefore,  could  not  recover,  and  should  have  *been  non- 
-l  suited.  The  decree  for  the  i)laintiff  is  set  aside,  and  the  motion 
for  nonsuit  is  now  granted. 

llrcHARDsoN,  O'Neall,  Evans,  Butler,  JJ.,  concurred. 
WrI'jId  and  McMullan,  for  the  motion.  Eaves  and  Thompson,  contra. 
See  3  Rich.,  G9,  175;   1  Strob.,  58.     An. 


17]  m'lean  vs.  ex'ors.  of  green.  361 


John  M'Lean  vs.  Ex'ors  of  Green. 

Defendants,  executors  of  Dr.  Green,  Late  of  Colnmbia,  after  advertising  a  sale  of 
the  negroes,  belonging  to  the  estate  of  their  testator,  to  take  place  in  the  town 
of  Columbia,  on  a  certain  day :  on  the  day  appointed  by  previous  notice, 
proceeded  to  sell  the  negroes,  at  public  out-cry  ;  but  before  olforing  any  of  them 
for  sale,  announced  publicly,  and  advertised  the  bystanders,  that  they  did  not 
warrant  the  soundness  of  the  slaves  ;  but  the  genuineness  of  the  title.  Held, 
that  this  was  a  sufficient  notice  to  exonerate  and  exempt  the  executors,  from  a 
recovery  against  them,  on  an  action  for  an  implied  warranty  of  soundness — 
also,  held,  that  the  onus  did  not  lie  on  the  defendants,  to  prove,  whether  the 
plaintiff  heard,  or  was  aware  of  the  terms  of  the  sale,  or  not. 

Before  O'jSTeall,  J.,  at  Columbia,  Spring  Term,  1841. 

Assumpsit  on  the  implied  warranty  of  soundness  of  a  negro  man, 
Edinburgh,  sold  at  auction,  by  the  defendants,  with  the  other  estate  of 
Dr.  Green,  and  purchased  by  the  plaintiff.  When  the  sale  of  the  negroes 
was  about  to  begin,  and  when  the  bidders  were  generally  collected,  the 
defendants  caused  it  to  be  publicly  announced,  as  part  of  the  conditions 
of  the  sale,  in  regard  to  the  negroes,  that  the  title  would  be  warranted, 
but  not  the  soundness.  Edinburgh,  being  bid  off  by  the  plaintiff,  he 
complied  with  the  terms  of  sale,  and  accepted  a  bill  of  sale  from  the  de- 
fendants, warranting  the  title,  but  containing  no  warranty  *of  sound-  p^,  ^ 
ness.  There  was  no  proof  on  one  side,  or  the  other,  whether  the  *- 
plaintiff  was  present,  or  absent,  at  the  public  announcement  of  the  condi- 
tions of  the  sale.  And  it  was  contended  for  the  plaintiff,  that  unless  he 
were  proved  to  be  present,  he  was  not  bound  by  them. 

The  Court  instructed  the  jury,  that  the  refusal  to  warrant  the  sound- 
ness of  the  negroes,  at  the  commencement  of  the  sale,  attached  to  each 
negro  then  sold;  but  that,  any  after  representation  of  the  soundness  of 
this  negro,  would  be  a  warranty. 

The  jury  found  for  the  defendants,  and  the  plaintiff  moved  to  set  aside  the 
verdict,  on  the  ground  of  misdirection. 

Curia,  per  Earle,  J.  The  sale,  in  this  case,  seems  to  have  been  an 
extensive  one,  and  probably  continued  through  several  days.  The 
printed  advertisement  of  the  sale,  in  the  Gazette,  was  not  produced,  and, 
probably  contained  only  a  notice  of  the  time  of  the  sale,  and  the  things 
to  be  sold,  with,  perhaps,  the  terms  of  credit,  and  the  mode  of  securing 
payment.  There  were  no  written,  or  i)rinted  conditions  of  sale  exhibited, 
or  otherwise  made  known,  on  the  day.  It  seems  to  follow,  therefore, 
that  the  verbal  declarations  of  the  defendants,  at  the  sale,  constituted  the 
conditions,  by  which  they  and  the  purchasers  were  to  be  bound.  If  there 
had  been  but  a  single  negro  sold,  it  is  conceded  on  the  part  of  the  j^lain- 
tiff,  that  the  announcement  of  the  defendants,  that  they  warranted  the 
title  only,  and  not  the  soundness,  would  have  been  binding  on  the  pur- 
chaser. But  it  is  insisted,  that  each  negro  constituted  a  separate  sale, 
and  that  the  verbal  condition  announced,  did  not  attach  to  every 
individual  negro  subsequently  sold  to  different  purchasers;  and  that 
bidders,  not  proved  to  have  been  present  at  the  beginning  of  the  sale,  are 
not  to  be  presumed  to  have  known  the  condition  thus  announced. 
There  is  much  difficulty  in  laying  down  a  rule  on  this  subject,  that  shall 
be  free  from  objection.  There  is  no  doubt  that,  at  an  auction  sale,  in 
regard  to  the  entry  in  writing,  under  the  statute  of  frauds,  to  bind  the 


362  COLUMBIA,    DECEMBER,    1841.      VOL.  IL  [*18 

purchaser,  each  article  constitutes  a  separate  purchase,  and  requires  a 
*ian  proper  entry.  But  it  would  be  extremely  inconvenient,  =*=and,  it 
-I  seems  to  me,  without  any  corresponding  advantage  at  an  auction 
sale  of  fifty  negroes,  by  the  same  person,  on  the  same  day,  in  pursuance 
of  ])revious  notice,  to  require,  in  the  absence  of  printed,  or  written  con- 
ditiiins,  that  the  seller  should  announce,  on  offering  each  negro,  the  whole 
terms  and  conditions  of  sale.  These  may  embrace  many  particulars,  as, 
for  instance,  cash  or  credit,  if  the  latter,  for  how  long;  the  nature  and 
form  of  the  security ;  whether  with,  or  without  warranty,  either  of  title, 
or  soundness,  or  of  both.  Sales  at  auction  should  be  accompanied  with  the 
most  perfect  openness  and  fairness.  If  the  hour  of  sale  is  fixed  by  pre- 
vious notice,  the  announcement  of  the  conditions,  verbally,  before  the 
hour,  would  not  suffice.  If  made  after  the  hour,  or  in  case  no  hour  be 
fixed,  if  made  at  the  beginning  of  the  sale,  when  the  bidders  may  be  sup- 
posed to  be  all  assembled,  and  in  such  way,  as  to  attract  the  attention, 
and  reach  the  ears  of  the  crowd  ;  I  can  perceive  no  reason,  why  it  should 
be  repeated  on  the  sale  of  each  particular  negro.  In  the  case  supposed, 
would  a  person  to  whom  a  negro  had  been  knocked  down,  towards  the 
end  t)f  the  sale,  on  the  same  day,  be  allowed  to  disclaim  the  purchase,  on 
the  ground  of  being  required  to  pay  cash,  when  he  supposed  it  was  a 
sale  on  credit,  not  being  present  when  the  terms  were  announced  ;  or  on 
the  ground  of  not  being  aware  of  the  terms  in  any  other  particular  ?  If 
printed  or  written  conditions  are  exhibited  in  one  place,  only,  the  bidders 
are  presumed  to  know  them.  If  they  are  published  aloud,  at  the  be- 
ginning of  the  sale,  why  should  not  bidders  be  presumed  to  hear  them  ? 
There  are,  always,  terms  of  sale,  and  although  not  exhibited  in  writing, 
it  is  reasonable  to  suppose,  that  he  who  bids,  has  first  inquired.  The 
refusal  to  warrant  the  soundness  of  negroes  was,  here,  only  one  of  the 
conditions  of  the  sale,  of  which  the  purchaser  was  as  much  bound  to  take 
notice,  as  that  he  would  be  required  to  pay  part  cash,  or  to  give  his  note 
at  sixty  days,  or  his  bond  at  twelve  months;  and  if  fairly  and  publicly 
announced,  at  the  beginning  of  the  sale,  to  the  crowd  of  bidders,  I  think, 
would  attach  to  the  sale  of  each  negro,  in  that  gang,  on  that  day.  And 
such  was  the  sale  to  the  plaintiff,  in  this  case.  lie  did  not  prove  that 
*.7A-|  I'C  was  absent  when  the  announcement  *was  made,  or  that  he  came 
"  -^  to  the  place  of  sale  afterwards,  even  if  such  proof  could  avail  him, 
A  majority  of  the  Court  thinks  that  the  defendants  are  not  required  to 
pnjve  that  he  was  present. 

Tills  action  is  on  the  implied  warranty ;  and  it  is  material  to  bear  in 
mind,  that  after  the  negro  was  bid  off  by  the  plaintiff,  as  the  defendants 
allege  under  their  refusal  to  warrant  the  soundness,  he  complied  with  the 
other  lorms  of  sale  on  his  part,  and  accepted  a  bill  of  sale,  from  the 
defendants,  warranting  the  title  only.  Now,  it  is  true,  that  an  express 
warrHtity  of  title  docs  not  exclude  an  implied  warranty  of  soundness. (a) 
But  when  the  question  is,  whether  the  warranty  of  soundness  was  part  of 
the  Cf)ii1raet,  the  acceptance  of  such  a  bill  of  sale  alfords  strong  evidence, 
that  tilt'  plaintifl'  was  not  ignorant  of  the  refusal  to  warrant.  Motion 
refused. 

IliciiAUDSoN,  O'Xrall,  Evans,  and  Butler,  JJ.,  concurred. 
Blavk  and  Arthur,  for  the  motion.     Gi'erjg  and  De  Saussure,  contra, 
(«)  I'oat,,  333.     An.  See  Boinest  vs.  Leiguez,  2  Rich,,  464.     An. 


^21]  BAKER,   JOHNSON   &   CO.    VS.   BUSHNELL.  363 


*Baker,  Johnson  &  Co.  vs.  Abner  Bushnell.  [*21 

The  sureties  to  a  prison  bounds'  bond  are  not  liable  for  the  costs,  incurred  in 
defeating  the  discharge  of  their  principal,  on  his  application  under  the  prison 
bounds'  Act.  But  costs  may  be  taxed  against  the  principal  alone,  in  an  issue  to 
try  the  validity  of  his  schedule. 

Before  O'Neall,  J.,  at  Edgefield,  Fall  Term,  1841. 

The  defendant  applied  for  the  benefit  of  the  insolvent  debtors'  Act. 
The  ])laintiffs  objected  to  his  discharge,  and  filed  a  suggestion  contesting 
Lis  schedule. 

After  two  trials  at  yiisi  jwius  and  in  the  Court  of  Appeals,  it  was 
held  that  the  prisoner  was  guilty  of  an  escape,  and  could  not,  therefore, 
be  discharged. 

The  plaintifis  claimed  now  to  tax  costs  against  the  defendant  on  the 
issue  disputing  his  schedule,  and  to  recover  the  same  against  the  defendant 
and  his  securities,  on  the  prison  bounds'  bond.  The  presiding  Judge 
ruled,  that  as  the  law  gave  no  costs,  none  could  be  taxed ;  that  they 
could  not  be  recovered  against  the  defendant's  securities. 

The  plaintiffs  appealed,  on  the  ground  of  error  in  the  Judge,  and  insisted 
that,  by  law,  they  had  the  right  to  tax  their  costs  against  the  defendants. 

Griffin  Sf  Burt,  for  the  motion.  Cited  the  Act  of  '88,  and  said,  that  by  the 
authority  of  this  Act,  the  Judge  is  directed  to  submit  the  issue  to  a  jury.  On  a 
feigned  issue,  costs  abide  the  verdict:  cited  Burr.,  1021  ;  4  T.  R.,  402. 

Carrol,  coutra.     Cited  2  N.  &  M'C,  377  ;  Act  of  '27  ;  P.,  55,  fee  biU. 

Curia,  2^er  O'Neall,  J,  This  Court  is  entirely  satisfied,  that  the 
costs  of  the  issue,  in  which  it  was  held  that  the  prisoner  was  guilty  of  an 
escape  and  could  not  therefore  be  discharged,  could  not  be  inclnded  in  a 
verdict  on  the  prison  bounds'  bond,  against  the  defendant  and  his  securi- 
ties ;  and  the  case  of  Leslie  and  Calhoun  vs.  Taggart,  ct  al.,(a)  decided 
at  this  Term,  may  be  referred  to  as  a  perfect  analogous  authority,  on  this 
very  point.  But  it  seems,  that  the  plaintiffs'  attorney  merely  intended  to 
claim  to  be  allowed  to  tax  costs  against  the  defendant  alone  ;  and  after  a 
full  review  of  all  the  authorities,  I  think  he  is  entitled  *to  do  so.  r^^^g 
The  7th  sec.  of  the  prison  bounds'  Act,  5  Stat  at  Large,  80,  enacts  L  — ' 
that  "  when  the  prisoner  is  accused  of  fraud,  the  Judge,  or  Justice,  before 
whom  the  prisoner  is  brought,  shall  direct  a  jury  to  be  empannelled  and 
sworn  to  determine  the  fact."  This  makes  the  case  a  suit  at  law  between 
the  parties,  on  the  question  of  fraud,  or  no  fraud  :  and  whether  such  a 
case  arise  by  operation  of  law,  or  by  the  order  of  the  Court,  the  rule  is, 
I  think,  that  the  party,  prevailing  in  the  issue,  is  entitled  to  tax  costs. 
In  Fabre  vs.  Zylstra,  2d  Bay,  148,  the  issue  was  made  up  under  the 
insolvent  debtors'  Act,  which  does  not  direct  the  question  of  fraud  to  be 
tried  by  a  jury.  But,  the  Judges  thought  that  it  was  the  proper  course. 
In  allowing  the  issue,  they  did  not  make  any  order  directing  the  costs  to 
abide  the  event,  which  certainly  would  have  been  done,  if  the  law  had 
been  otherwise.  In  Denton  vs.  English,  2  N.  &  M'C,  377;  the 
the  question,  as  to  costs,  arose  on  an  appeal  from  the  Ordinary  and  they 

(rt)  Post.,  71.    An. 


364  COLUMBIA,    DECEMBER,    1841.      YOL.  II.  [*22 

were  not  allowed ;  and  that  case  has  led  to  the  confusion,  on  the  matter 
of  costs  on  feigned  issues  at  law.  When  it  is  examined,  it  will  be  found, 
however,  to  rest  on  the  peculiar  features  of  the  case  before  the  Court. 
The  verdict  was  not  to  be  followed  by  a  judgment  of  the  court  of  law  ; 
it  was  to  be  returned  to  the  Court,  out  of  which  the  appeal  came,  and 
would  there  have  its  final  effect ;  and  hence,  costs  at  law  could  not  be 
awarded.  Judge  Colcock,  who  delivered  the  judgment,  rested  his 
opinion  very  much  upon  that  view.  For,  he  said,  speaking  of  an  issue 
from  Chancery,  as  an  illustration  of  the  question  then  in  hand.  "  The 
costs  do  not  follow  the  verdict,  as  matter  of  course,  but  the  finding  of  the 
jury  is  returned  to  the  Court  that  ordered  it,  where  the  costs  are  discre- 
tionary." In  a  subsequent  part  of  his  opinion,  he  says,  "where  an  issue 
feigned  is  ordered  by  the  Court,  and  a  verdict,  the  costs  may  be  made  to 
abide  the  event :  but  there,  it  is  considered,  as  a  case  arising  in  Court, 
and  stands  on  the  footing  of  all  other  causes  originating  in  the  Court, 
and  may  be  regulated  by  order."  At  first,  I  was  disposed  to  take  the 
view  suggested  by  the  closing  words,  which  1  have  quoted,  and  to  lay  it 
down,  that  in  all  collateral  issues  made  up  by  the  order  of  the  Court,  or 
*9Q1  ^y  operation  of  law,  the  Court  must  direct  the  costs  to  *abide  the 
-■  event.  And,  in  most  cases,  such  a  practice  is  very  commendable. 
In  issues,  ordered  by  the  Court,  it  ought  always  to  be  pursued,  (a)  It 
lias,  in  such  cases,  the  sanction  of  Posey  vs.  Underivood,  1  Hill,  266. 
But  in  issues  which  the  parties  are  entitled  to  make  up,  as  a  matter  of 
legal  right,  or  when  the  Court  neglects  to  make  an  order  on  a  feigned 
issue,  regulating  the  payment  of  costs,  I  am  satisfied  costs  follow  the 
result  of  the  case  so  made.  In  attachment  cases,  where  the  return  of  the 
garnisliec  is  discharged  and  an  issue  is  made  up,  the  Act  subjects  the 
party  failing,  to  costs,  Westmoreland  vs.  Tippens,  1st  Bail,,  514.  In 
Oldknoio  vs.  Waimoright,  and  Rex  vs.  Foxcroft,  Burr.,  lOH,  it  was  a 
feigned  action  under  a  rule,  by  consent,  to  try  the  right  of  election  to  the 
ollicc  of  Town  Clerk  of  Nottingham.  By  the  order,  directing  the  issue, 
costs  were  to  abide  the  event.  At  page  1022,  is  found  the  judgment  of 
Lord  Mansfield,  upon  the  question,  whether  the  costs  of  the  quo  xoarranto 
and  mandamus,  out  of  which  the  feigned  action  arose,  should  be  taxed 
against  the  defendant,  as  well  as  the  costs  of  the  feigned  action.  He  said 
that  "the  costs  on  the  civil  side  (arising  on  the  issue  only)  wotdd,  of 
course,  abide  its  event,  xoithout  needing  any  rule,  or  consent  for  that 
purpose,  (that  point  having  been  fully  settled  long  before  the  making  of 
the  present  consent  rule.")  In  Iloslcins  vs.  Bevlcley,  4  T.  R.  4,  there 
were  feigned  issues,  and  it  was  held  that  costs,  as  a  matter  of  course, 
followed  the  event.  But  the  Court  intimated  an  opinion,  that  as  feigned 
i.S!iu('S  were  only  granted  by  leave  of  the  Court,  it  would  be  prudent,  in 
future,  when  they  permitted  such  issues  to  be  tried,  to  compel  the  parties, 
that  the  costs  should  be  in  the  discretion  of  the  Court.  In  Herbert  vs. 
Williamson,  1  Wils.,  324,  it  was  ruled,  tliat  the  costs  followed  the  verdict 
on  a  feigned  issue;  and  in  it,  the  Judges  use  the  strong  expression 
"cost.s,  by  law,  follow  the  verdict."  They  also  draw  the  distinction 
between  issues  ordered  from  another  Court,  and  issues  arising  at  law  ; 
and  assign  the  reason  why  costs  at  law  are  not  allowed  in  the  former. 

(a)  G  Ricli.,  293,  323;  Rich.,  271.     An. 


*23]  TERREL    ET    AL.    VS.    EASTERLING.  365 

They  say  "on  an  issue  directed  by  Chancery,  this  Court  gives  no  costs, 
but  the  finding  of  the  jury  is  returned  to  Chancery  and  the  costs  there  are 
in  the  discretion  of  Court,  becaut^e  the  statutes  giving  costs  do  not  extend 
to  that  Cou7~t."  In  *I{ex  vs.  Fhillips,  Id.,  260,  the  issue  was  to  r:^^^ 
try  tlie  validity  of  a  by-law,  it  was  held  that  costs  followed  the  L 
judgment  on  the  feigned  issue.  From  this  review  of  authority,  I  think 
it  is  clear,  that  the  plaintiff  in  the  issue,  under  the  prison  bounds'  Act,  is 
entitled  to  tax  costs  against  the  defendant,  so  far  as  the  same  may  be 
provided  for  by  the  fee  bill  of  1827,  (Acts  of  182*1,  page  55.)  The  motion 
to  reverse  the  decision  below  is  dismissed  ;  but  the  plaintiffs  have  leave  to 
tax  the  costs  of  the  issue  against  the  defendant  alone. 

EiCHARDSON,  Evans,  Earle  and  Butler,  J  J.,  concurred. 

See  10  Rich.,  14;  6  Rich.,  293,  323;  1  Strob.,  116;  1  Rich.,  26.     An. 

In  Rice  vs.  Gist,  1  Strob.,  82,  all  wagers  were  held  unlawful.  There  seems 
theu  to  be  an  impropriety  in  giving  to  an  issue,  for  trial  of  a  disputed  fact,  the 
form  of  an  action  to  recover  a  wager, — which  form  is  the  technical  feignpcl  issue. 
A  suggestion  on  one  side,  and  traverse  on  the  other,  is  easier,  and  violates  no 
rule.     An. 


John  Terrel  et  al.  vs.  Evander  Easterling. 

Where  a  testator,  by  his  last  will,  devised  certain  real  estate  to  the  plaintiffs,  as 
trustees  for  his  daughter,  (therein  named,)  reserving  the  "sawing  timlier," 
growing  thereon.  It  was  held  to  be  a  good  reservation,  and  sufficiently  explicit 
to  be  understood. 

Before  Earle,  J.,  at  Marlborough,  Spring  Term,  1841. 

Whose  report  is  as  follows : — Trespass  quare  clausum  fregit,  and 
cutting  and  carrying  away  the  plaintiff's  timber.  William  Pledger  made 
his  last  will  and  testament  on  10th  August,  1825,  and  died.  lie  devised 
and  bequeathed  his  whole  real  and  i)ersonal  estate  to  his  wife,  for  life. 
After  her  death,  he  devised  to  John  Terrel,  and  the  other  plaintiffs,  "  the 
following  tracts  of  land ;  one  tract,  where  Mr.  Emanuel  now  lives,  and 
the  lower  half  of  a  tract  lying  between  Ilerendenes  Prong  and  Crooked 
Creek,  next  to  Mr.  Crossland's  land,  {the  sawing  timber  excepted ;'''') 
then  ^follows  a  bequest  of  negroes,  "in  trust,  nevertheless,  to  per-  r^j-gc 
mit  my  daughter,  Mary  Ann  Emanuel,  to  use  and  enjoy  the  same,  ^ 
to  her  sole  and  separate  use,  &c.,  during  the  time  of  her  natural  life," 
with  limitation  over.  He  next  devised  to  the  same  persons,  "  the  upper 
half  of  the  same  tract,  between  Herendenes  Prong  and  Crooked  Creek, 
the  sawing  timber  excepted,''^  with  a  l^equest  of  negroes,  in  trust,  for  the 
use  of  his  daughter,  Caroline  Williams,  for  life,  with  similar  limitations. 
The  testator,  lastly,  devised  to  the  same  persons,  as  follows :  "  all  my 
lands,  which  I  have  not  hereinbefore  disposed  of^,  also,"  &c. ;  then  fol- 
lows a  bequest  of  negroes,  "in  trust,  nevertheless,  to  permit  my  son, 
Philip  Williams  Pledger,  to  use  and  enjoy  the  same,  during  his  natural 
life,"  &c.,  with  limitations. 


366  COLUMBIA,    DECEMBER,    1841.      TOL.  II.  [*25 

At  the  death  of  the  testator,  there  was  a  saw  mill,  on  a  tract  devised 
to  Philip  W  Pledger,  after  the  death  of  the  widow,  and  which  lay 
adjoining  the  tract,"  between  Herendenes  Prong  and  Crooked  Creek, 
devised  in  equal  portions  to  Mrs.  Emanuel  and  Mrs.  Williams;  and  out 
of  which,  the  sawing  timber  was  excepted.  After  the  death  of  the 
tenant  for  life,  Philip  W.  Pledger  entered  upon  the  saw  mill  tract,  sold 
and  conveyed  it,  together  with  the  right  to  cut  sawing  timber,  on  the 
tract  devised  to  Mrs.  Emanuel.  To  perfect  the  title,  there  being  judg- 
ments, he  caused  the  Sheriff  to  levy  on  and  sell  the  same  tract,  who  also 
conveyed  the  right  to  cut  sawing  timber,  as  appurtenant  thereto.  Under 
these  conveyances,  the  defendant  entered,  and  claimed  and  exercised  the 
right  of  cutting  sawing  timber,  on  the  tract  devised  to  Mrs.  Emanuel,  as 
appurtenant  to  the  saw  mill  tract.  For  that  trespass,  this  action  was 
brought. 

The  persons  appointed  as  trustees  were  also  nominated,  as  executors, 
after  the  death  of  the  widow ;  but  they  never  qualified,  nor  otherwise  took 
upon  themselves  the  executive  of  the  tracts  ;  and  never  interfered  in  any 
manner  with  the  management  of  the  property.  Mr.  Emanuel  and  his  wife 
were  in  possession  of  the  lauds,  devised  to  her,  at  the  date  of  the  will, 
and  have  been  so,  ever  since. 

It  will  be  perceived  from  this  statement,  that  several  questions  arose; 
1,  as  to  the  right  claimed  by  the  defendant  to  cut  sawing  timber,  under  the 
^.-jp-|  grant  of  Philip  W.  *Pledger;  2,  as  to  the  right  of  the  plaintiffs  to 
-'  maintain  this  action. 

In  regard  to  the  first,  I  consider  the  reservation,  contained  in  the 
words,  "  sawing  timber  excepted,"  in  the  devise  to  the  plaintiffs,  in  trust 
for  Mrs.  Emanuel,  as  incompatible  with  the  enjoyments  of  those  rights, 
that  are  inseparable  from  an  estate  in  fee ;  repugnant  to  the  nature  of  the 
estate  devised,  and  therefore  void ;  in  the  same  manner  as  would  be  a 
condition,  that  the  grantee  should  not  commit  waste,  or  take  the  profits, 
or  that  his  wife  should  not  have  dower,  and  the  like,  I  consider  it,  also, 
void  for  uncertainty,  both  as  to  the  person  in  whose  behalf  it  was  made, 
and  as  the  other  lands  to  which  it  was  to  be  appurtenant ;  and  that  this 
uncertainty  could  not  be  renewed  by  proof,  aliunde.  Supposing  the 
objections  not  to  be  good,  and  that  the  reservation  was  valid,  constituting 
a  separate  right  or  interest,  independent  of  that  of  the  devisee,  I  con- 
sidered that  it  did  not  pass  to  Philip  W.  Pledger,  under  the  general 
words,  "all  my  land  which  I  have  not  hereinbefore  disposed  of;"  but 
that,  as  an  inheritable  right,  it  descended  equally  upon  the  heirs  at  law, 
of  whom  there  were  four,  as  a  joint  interest  to  be  enjoyed  like  other  rights 
of  like  kind,  jointly,  or  to  be  jointly  assigned;  and  that  the  defendant,  as 
the  assignee,  or  grantee  of  IMiilip  W.  Pledger,  in  regard  to  this  right, 
took  nothing. 

In  regard  to  the  second  question,  as  to  the  right  of  the  plaintiff's  trus- 
tees, to  maintain  this  action,  I  was  inclined  to  think  they  could  not,  and 
that  the  action  should  have  been  by  Emanuel  and  wife;  I  thouglit  it  safer 
to  refuse  the  motion  for  nonsuit,  and  instructed  the  jury  to  find  for  the 
plaintiffs,  reserving  the  question,  and  with  leave  to  the  defendant,  to 
enter  a  nonsuit,  if  the  Court  sliould  be  of  opinion,  that  the  action  is  not 
■well  brought  by  the  present  plaintiffs. 


*26]  TERREL   ET   AL.    VS.    EASTERLING.  367 

GROUNDS   OF   APPEAL. 

1st.  Because  bis  ITonor,  Judge  Karle,  erred  in  decidinjr  on  the  motion,  in 
the  Court  below,  tliat  the  plaintiiFs,  who  are  trustees  by  virtue  of  a  clause  of 
the  will,  f^iviug  to  the  cestiii  que  tru.sf,  (who  was  in  possession  at  the  execution 
of  the  will,  and  continued  in  possession  to  the  time  of  action,)  *alife  estate,  pr,y 
and  after  her  death,  to  the  heirs  of  her  body,  with  a  still  farther  liuiita-  L 
tion,  upon  failure  of  issue,  at  her  death,  the  plaiutiifs  never  having  had  posses- 
sion, exercised  authority,  or  taken  upon  themselves  any  execution  of  the  trust, 
could  maintain  an  action  for  an  injury  to  the  possession. 

2d.  Because  the  trust  was  executtul,  and  the  lands  vested  in  the  cestui  que 
trust,  who,  alone,  could  maintain  this  action. 

3d.  That  the  ces/ni  que  trust,  being  in  possession  at  the  time  of  the  execution 
of  the  will,  and  continuing  in  possession,  exclusively,  to  time  of  this  action, 
was  a  tenant  for  life,  with  the  right  of  committing  waste,  and  could,  alone 
maintain  an  action  for  injury,  merely  to  the  possession. 

4th.  That  the  right,  to  cut  saw-timber,  was  reserved  by  the  testator,  and 
conveyed  by  a  subsecpient  clause  of  the  will,  to  the  said  trustees,  for  the  use 
and  behoof  of  P.  W.  Pledger,  for  life,  with  a  limitation  over,  under  the  name 
of  land,  and  the  said  P.  W.  Pledger  went  into  the  use  of  the  same,  and  sold  to 
defendant's  father,  with  the  mill  tract,  to  which  it  was  intended  to  be,  and  was 
appurtenant,  and  was  levied  upon,  and  sold  by  the  sheriff  to  defendant,  to 
perfect  the  title,  on  a  judgment  obtained  against  the  executrix  of  the  will,  on  a 
debt  due  by  testator,  in  his  lifetime. 

5th.  That  the  right  to  cut  saw-timber  is  a  property,  of  the  nature  of  an 
incorporeal  hereditament,  and  is  subject  to  a  levy,  and  was  properly  conveyed 
by  the  sale  of  the  sheriff,  and  the  sale  of  Pledger,  inasmuch  as  it  was  reserved 
by  the  testator,  and  sold  upon  a  judgment,  on  a  debt  due  by  him,  in  his  lifetime. 

McQueen,  for  the  motion.  This  case,  may  it  please  your  Honors,  was  submitted 
to  his  Honor,  upon  legal  questions,  in  the  Court  below,  and  was  so  tried,  by 
supplying  a  few  matters  of  fact  on  proof,  and  comes  now  before  you  upon  the 
motion  for  a  nonsuit. 

The  first  ground,  as  to  the  plaintiffs'  right  to  recover,  presents  two  questions. 
1st.  Is  the  trust  an  executed  trust,  or  is  it  executory?  2d.  Suppose  it  to  be 
•executory,  can  the  plaintiffs  recover  for  an  injury  to  the  possession;  they  never 
having  taken  upon  themselves  the  execution  *of  the  trust,  nor  having  been  r^.jn 
in  possession :  and  the  cestui  que  trust,  in  the  actual  possession,  from  the  time  ^ 
of,  and  even  before  the  making  the  will,  to  this  time. 

The  first  question,  then,  may  it  please  your  Honors,  I  presume,  will  be  decided 
mainly  upon  the  face  of  the  will,  and  the  application  of  those  principles,  that  have 
heretofore  been  estal)lished,  in  cases  involving  the  same  questions. 

The  lands  here  in  question,  with  all  the  other  lands,  are  loaned  to  the  widow  of 
testator,  for  life,  and  after  her  death,  to  be  divided,  in  the  following  manner. 

They  are,  then,  given  to  John  Terrel,  and  others,  to  wit :  one  tract,  tvhere  Mr. 
Emanuel  now  lives,  and  the  lower  half  of  a  tract,  lying  between  Herendencs  Prong 
and  Crooked  Creek,  next  to  Mr.  Crossland's  land,  (the  sawing  timber  excepted.) 
"In  trust,  nevertheless,  to  permit  my  daughter,  Mary  Ann  Emanuel,  to  use  and 
enjoy  the  same,  to  her  sole  and  separate  use,  without  the  control  or  interference 
of  her  husband,  during  the  term  of  her  natural  life,  and  after  her  death,  to  convey 
the  same  to  the  heirs  of  her  body ;  but  should  my  said  daughter  die,  leaving  no 
heirs  of  lier  body,  surviving  hetj  then  I  give  the  said  lands  and  negroes  to  the 
said,"  trustees,  &c. 

Let  .lis  see,  then,  what  estate  is  this.  I  will  not  attempt  here,  to  trace  the 
doctrine  of  uses  and  trusts,  but  will  only  say,  that  when  there  is  nothing  farther 
to  be  done  by  the  trustees,  to  vest  the  use  of  a  freehold  estate,  it  is  an  executed 
trust,  and  vests  the  legal  estate.  In  4  Kent's  Commentaries,  p.  303,  this  doctrine 
is  found,  "the  cestui  que  trust  is  seized  of  the  freehold,  in  contemplation  of  equity, 
the  trust  is  regarded  as  the  land,  and  the  declaration  of  the  trust  is  the  disposition 
of  the  land."  Again,  on  page  305,  same  volume  on  executed  trusts,  may  be 
found  as  follows :     "  It  is  executed,  either  when  the  legal  estate  passes,  as  in  a 


368        COLUMBIA,  DECEMBER,  1.841.   VOL.  II.       [*28 

conveyance  to  B.,  in  trust,  or  for  the  use  of  C,  or  when  only  the  equitable  title 
passes,  as  in  the  case  of  A.,  conveying  to  B.,  to  the  use  of  C,  in  trust  for  D.,  the 
trust,  in  this  last  case,  is  executed  in  D.,  though  he  has  not  the  legal  estate,  and 
all  the  cas*es  decided  in  our  own  State  sustain  the  position,  that  when  nothing 
remains  to  be  done  by  the  trustees,  to  give  the  use,  it  is  executed,  and  the  estate 
^^  *vests ;  and  I  have  found  no  case  decided,  in  our  own  Courts,  or  elsewhere, 
~  -I  that  does  not  declare  the  trust  executed,  when  the  trustees  are  not  required 
to  convey,  or  to  receive,  and  pay  out,  or  apply  the  profits  and  rents,  to  make 
repairs,  or  do  some  acts,  in  the  management  of  the  estate.  In  fact,  in  a  large 
majority  of  the  cases,  the  receipt  and  disbursement  of  the  rents  and  profits,  settle 
tlie  question. 

In  this  case,  then,  what  single  act  is  to  be  done  by  the  trustees,  to  vest  the  use 
in  the  wife  of  Emanuel  ?  She  is  in  possession  at  the  time  of  the  date  of  the  will, 
as  appears  on  its  face,  and  I  see  no  authority  clearly  given  to  the  trustees,  even 
to  enter  on  the  premises.  The  lands,  after  the  death  of  the  widow,  were  to  be 
divided,  and  it  is  not  denied,  that  Mr.  Emanuel  was,  at  the  time,  in  the  posses- 
sion of  the  portion  given  to  the  use  of  his  wife,  and  has  continued  so  ever  since. 
The  wife  then  has  been  in  the  enjoyment  of  the  use  given  her,  the  trustees  are  to 
allow  her  that  sole  and  separate  use,  they  are  to  take  no  charge  or  notice  of  the 
rents  and  profits,  to  do  no  other  act,  that  I  can  perceive,  and  how  can  the  trust  be 
executory  ?  The  estate,  at  her  death,  is  to  go  to  the  heirs  of  her  body,  which,  ac- 
cording to  weU-settled  law  now  in  tliis  State,  are  her  heirs  generally.     See  the 

case  of  Ramsey  vs.  Marsh,  2  McCox-d,  252,  also  the  case  of  Jasper  vs.  Maxwell, 

Equity,  357.  In  this  last  case,  this  doctrine  is  laid  down,  "Equity  always  com- 
pels the  trustee  to  surrender  the  legal  estate  to  the  cestui  que  trust,  unless  the 
receipt  of  the  profits  by  the  trustee,  is  necessary  to  efl'ectuate  the  intention  of  the 
creator  of  the  trust;"  filso,  see  the  case  of  Hopkins  v>i.  ]Vard,  G  MuJif.  41 ;  and 
the  case  of  Cleary  vs.  McDowell,  et  al.,  Cheves,  Rep.  140  ;  and  also  the  case  of 
Pringle  and  others,  Trustees,  vs.  Allen,  1  Hill's  Chancery,  135. 

But  it  may  be  said,  the  fact,  that  the  will  requires  the  trustees  to  convey  to  the 
lieii"s  of  the  body  of  Mrs.  Emanuel,  will  make  it  executory.  This  is  not  antece- 
dent to  the  enjoyment  of  Mrs.  Emanuel's  life  estate,  and,  in  fact,  cannot  be  of 
serious  consideration,  because  no  conveyance  to  them  would  be  necessary ;  the  law, 
by  the  statute  of  uses,  conveys  to  them  in  such  a  case  as  this,  and  such  a  requi- 
^oQi  sition,*  requiring  no  more  than  the  law  does  of  itself,  will  be  regarded  as  an 
■'  useless  expression.  Then,  the  fact  that  the  estate  is  not  to  be  subject  to  the 
control  or  interference  of  the  husband,  will  be  relied  upon ;  but  in  what  way  is  he 
to  be  i)rohibited  ?  The  trustees  are  not  to  take  the  rents  and  profits  ;  they  are  not 
to  take  the  possession  of  the  premises  ;  they  are  not  to  lease  the  lands,  and  no 
express  or  impUed  right,  that  I  can  see  given  them,  will  allow  them  to  do  either, 
or,  in  fact,  any  other  specific  act  of  dominion.  Suppose  now  the  trustees  were  to 
assume  the  right  of  entering  on  the  premises  and  turning  off  the  cestui  que  trust, 
unless  the  husband  would  refrain  from  any,  the  least  interference,  or  control, 
could  they  take  the  possession  and  lease  out  the  premises,  or  could  they  hold  the 
possession,  under  any  implied  right  ?  I  cannot  think  so  ;  for,  according  to  the 
case  of  Jas])er  vs.  Maxwell,  before  cited,  equity  would  compel  them  to  surrender 
the  sole  and  separate  use  and  enjoyment  to  the  wife,  who  is  to  render  the  trustees 
no  account  of  tlie  rents  and  profits,  and,  as  a  legal  consequence,  she  must  retain 
that  enjoyment  for  her  lifetime,  and  it  is  not  certain  indeed  but  that  the  testator 
intended  Ity  the  words  "convey  the  same  to  the  heirs  of  her  body"  above 
alludi'd  to,  that  she  should  convey  the  same  to  the  heirs  of  her  body ;  and  if  the 
will  will  bear  that  construction  there  is  an  end  to  this  controversy. 

By  u(jticing  the  next  succeeding  clause  of  the  will,  we  find  the  following,  "but 
should  my  said  daughter  die  leaving  no  heirs  of  her  body,  surviving  her,  tlien  I 
give  tlio  said  above  land,  and  negroes,  to  the  said  John  Tenvl,"  and  now  what 
are  wo  to  infer  from  this,  but  that  sliould  she  leave  heirs  at  the  time  of  her  death, 
the  wliolu  catato  is  gone  ?  I  need  not  say  to  your  Honors,  that  the  terms,  heirs, 
and  licira  of  her  body,  in  this  State,  are,  in  legal  contemplation,  the  same,  and 
tlio  law  will  construe  the  term  and  give  it  its  legal  meaning.  If  so,  then  this 
must  be  an  estate  in  fee,  or,  at  m(;st,  in  fee  for  hfe,  with  remainder  to  other 
persons,  and  must  bo  vested.     If  tlie  testator  did  not  so  regard  it  why  reconvey 


^30] 


TERREL   ET    AL.    VS.    EASTERLING.  369 


it  to  tlie  trustees  ?  He  had  before  given  it  to  tliem,  in  trust,  and  if  he  had  not 
intended  that  it  should  pass,  upon  her  leaving  heirs  of  her  body,  which  the  law 
construes  for  him  to  be  heirs  generally,  *wliy  again  give  it  to  the  trustees?  p^q-i 
This  seems  to  me  to  be  a  fair  construction  as  can  be  made,  harmonizing  the  '• 
words  of  the  will  and  the  law  of  the  land,  and  I  see  no  subsequent  clause  of  the 
will  to  change  that  view.  There  is  a  part  of  the  last  clause  of  the  will,  which  is 
in  these  woi'ds,  viz.  :  "  and  in  case  both  my  daughters,  Mary  Ann  and  Caroline, 
should  die  without  leaving  any  children  surviving  them,  then  I  give  the  estate, 
hereinbefore  left  to  their  use,  to  such  of  my  other  children  as  may  be  then  living, 
or  their  heirs,"  of  which  there  may  be  some  notice  from  the  other  side,  because 
the  word,  children,  is  used  ;  but  it  seems  to  me  that  this  clause  is  in  favor  of  my 
above  position,  rather  than  against  it.  It  gives,  if  it  be  allowed  to  apply  to  the 
clause,  making  the  first  devise  to  Mrs.  Emanuel,  a  life  estate,  at  least,  to  her,  and 
it  is  immaterial  as  to  any  other  effect,  and  indeed  the  words  ^'children  or  their 
heirs'^  seem  to  me  in  the  very  last  of  the  clause  to  make  it  a  fee  simple,  or  at 
least  a  vested  remainder  in  their  children,  or  their  heirs.  And  this  clause  puts 
the  question  at  rest,  on  the  right  given  in  the  first  clause,  in  relation  to  Mrs. 
Emanuel,  to  her  or  the  trustees,  as  it  may  be  construed,  at  her  death,  to  "convey 
the  same  to  the  heirs  of  her  body,"  for  it  will  pass  at  her  death,  by  operation  of 
the  statute  of  uses,  to  the  remainderman,  whoever  he  may  be. 

I  did  not  design,  may  it  please  your  Honors,  in  the  commencement  of  this,  to 
spin  out  argument  to  this  length ;  but  rather  to  cite  your  Honors  to  authorities 
bearing  on  the  points,  and  will  leave  the  construction  of  the  instrument  without 
farther  comment. 

But  should  your  Honors  construe  the  instrument  to  create  an  executory  trust, 
then  the  question  presents  itself,  whether  these  plaintiffs  can  maintain  this  action 
for  an  injury  solely  to  the  possession. 

The  trustees  never  took  upon  themselves  the  execution  of  the  trust,  and  never 
were  in  possession ;  but  the  ccitai  que  trust  has  always  had  the  occupancy,  actual, 
and  upon  this  ground  I  think  the  plaintiffs  must  surely  fail. 

The  action  of  trespass  quare  clausum  /'regit,  according  to  all  authority,  is  for 
injury  to  the  possession,  and  without  the  trustees  taking  on  themselves  the 
execution  of  the  trust,  they  certainly  can  maintain  no  action ;  they  caimot  even 
*contend  for  a  constructive  possession,  upon  the  possession  of  the  cestui  que  r^qo 
trust,  unless  they  had  acted,  L     -■ 

But  suppose  it  maybe  said,  that  they  were  trustees  as  to  this  trust,  the  farther 
question  arises,  can  they  not,  being  in  the  actual  possession,  maintain  this  action 
where  the  cestui  que  trust  is  in  the  actual  enjoyment  and  possession;  can  her 
possession  be  their  possession  ?  They  had  no  right  to  the  possession,  they  were 
not  even  to  have  charge  of  the  rents  and  profits,  no  right  of  entry  to  take  charge 
of  the  rents  and  profits,  the  cestui  que  trust  was  not  even  to  account  to  them  for 
them,  but  is  exclusively  entitled  to  them  for  her  lifetime.  Whose  right,  then,  is 
affected  and  to  be  remedied  in  this  form  of  action  ?  Surely  the  person  whose 
property  is  injured ;  suppose  it  had  been  corn  growing  in  the  field  that  was  taken, 
would  the  trustees  have  to  account  for  it ;  or  would  it  merely  affect  the  interest  of 
the  cestui  que  trust  /  Surely  the  latter.  She  would  have  a  right  to  gather  and  use 
it,  and  render  no  account  to  the  trustees.  I  can  find  no  case  authorizing  one,  even 
having  a  right  to  the  premises,  without  actual  possession,  in  himself,  at  the  time, 
if  the  premises  be  occuj)ied  by  any  one,  to  bring  an  action  of  trespass  quare 
clausum /regit ;  and  belie  vhig  that  the  bare  suggestion  of  this  view  to  your  Honors 
will  be  sufficient  will  not  dwell  longer  in  argument  upon  it,  but  cite  your  Honors 
to  the  following  cases  :  Danford  vs.  Lowreii,  3  Haywood,  68,  which  declares  that 
trust  estates  are  subject  to  the  same  rules  as  legal  estates  in  every  case,  dower 
excepted;  also  the  case  ua  Cheves'  Rep.,  140,  above  referred  to;  also  the  case  of 
Amick  vs.  Frasier,  Dudley's  Rep.,  340 ;  also  a  case,  Campbell  vs.  Arnold,  1  John- 
son's Rep.,  511,  where  this  doctrine  is  laid  down  "  a  lesser  cannot  maintain 
trespass,  quare  clausum  /regit,  against  a  stranger  for  cutting  down  and  carrying 
away  trees  while  there  is  a  tenant  in  possession,  the  action  can  only  be  brought 
by  the  tenant  in  actual  possession  ;"  also  a  case,  Hare?  vs.  J/'  Cauley,  4  Term  Rep., 
489,  is  the  following:  A.  having  let  his  house,  ready  furnished,  to  B.,  cannot 
maintain  trcsiviss  against  the  Slieritf  for  taking  the  furniture  under  an  execution 
Vol.  I.— 25 


370  COLUMBIA,     DECEMBER,    1841.      VOL.  IL  [*32 

against  B.,  thongli  notice  Tvere  given  that  the  goods  belonged  to  A.,  because 
trespass  is  founded  on  a  tort  done  to  the  possession,  which  vras  not  in  A.  at  the  time ; 
^„o-i  also  a  case,  ^Crosby  vs.  Wadsworth,  6  East.,  602,  is  the  following:  "one  who 

J  has  contracted  with  the  owner  of  a  close  for  the  purchase  of  a  growing  crop 
of  grass,  then  for  the  purpose  of  being  mown  and  made  into  hay,  by  the  vendee, 
has  such  an  exclusive  possession  of  the  close,  though  for  a  limited  purpose,  that 
he  may  maintain  trespass,  quare  cluusum  /regit,  against  any  person  entering  the 
close  and  taking  the  grass,  even  with  the  assent  of  the  owner. ' '  I  have  rested  so 
confidently  on  the  above  grounds,  that  I  have  confined  my  efforts  in  this  case 
principally  to  them,  and  will  not  dwell  lengthily  on  the  other  grounds  of  appeal. 
But  should  your  Honors  entertain  different  views  from  mine  in  relation  to  those 
grounds,  then  I  sxibmit,  that  the  right  of  cutting  saw-timber  was  a  legal  right, 
not  incompatible  with  the  nature  of  the  conveyance.  Suppose  it  were  a  fishery, 
or  a  right  of  way,  would  it  be  illegal  or  incompatible  ?  I  respectfully  think  not, 
and  will  only  cite  your  Honors  to  4  Kent's  Commentaries,  310,  part  tJ ;  there  it  is 
laid  down,  "Every  estate  and  interest,  not  embraced  in  an  express  trust,  and  not 
otherwise  disposed  of,  remains  in  or  reverts  to  the  person  who  created  the  trust." 
Then,  if  this  is  a  right,  it  remained  in  the  testator,  and  even  if  not  disposed  of  in 
any  subsequent  clause  of  the  will,  there  was  no  violation  of  the  right  of  these 
plaintiffs  in  cutting  it :  they  have  nothing  to  complain  of  and  cannot  recover.  In 
such  case  the  parties  in  i^ossession  would  certainly  have  to  bring  this  action,  or, 
at  most,  the  persons  having  the  legal  right  to  immediate  possession. 

It  escaped  my  notice  at  the  time  of  the  trial,  or  rather  the  decision  on  statements, 
that  the  t;heritf  stated  that  he  did  not  levy  on  the  right  of  cutting  saw-timber  on 
Mrs.  Emanuel's  land,  but  included  it  in  the  deed ;  nor  did  I  know  it  until  the 
amendment  of  the  report  received  from  his  Honor ;  but  as  to  the  levy,  the  report 
now  settles  the  cxuestion.  But  I  submit  this  view  earnestly  to  your  Honoi'S,  that 
the  riglit  of  cutting  the  saw-timber  was  conveyed  to  the  trustees  for  the  use  of  P. 
W.  Pledger,  in  the  residuary  clause  of  the  will,  by  these  words,  "all  my  lands 
which  I  have  not  hereinbefore  disposed  of."  Under  the  term  lands,  accoi'ding  to 
Judge  Blackstone,  incorporeal  hereditaments  may  pass,  and  every  interest,  real ; 
^^04-1  and   the   right   of  *cutting    saw-timber   having  been   reserved,  thp    lands 

•^  adjoining  the  Mill  tract,  it  seems  to  me,  might  pass  iinder  the  general  term 
used,  if  the  defendant  had  have  shown  by  parol  that  it  was  intended  to  be  appur- 
tenant by  tlie  testator,  and  has  been  so  considered  by  all  the  parties  interested 
ever  since  the  testator's  death.  If  your  Honors  will  refer  to  the  clause  of  the 
will  giving  to  William  Ellis  Pledger  a  devise  or  bequest,  you  will  find  that  the 
testator,  tlien  intending  to  give  to  him  an  interest,  and  rights  in  the  realty,  says 
"the  following  land;"  and  under  the  term  land,  he  gives  only  the  privilege  of 
running  his  new  mill  race  through  such  land  as  it  then  ran  through,  also  the 
privil<'g<;  of  rnttin;/  timber,  making  a  dam  and  raising  the  water,  for  a  mill  on 
annthcr  tract  of  land.  And  if  this  would  amount  to  an  ambiguity,  then  the 
defendant  sliould  have  been  allowed  to  prove  by  parol,  and  to  liave  shown  the 
understanding  and  'intention  of  the  testator,  and  of  all  the  parties  in  interest 
afterwards,  by  wliidi  tliis  right  has  been  used  by  several  who  rented  and  indeed 
contracted  for  and  used  tlie  mills,  on  the  tract  conveyed  to  P.  W.  Pledger. 

If,  Ihcn,  th(!  trust  be  executed  in  P.  W.  Pledger,  and  the  right  to  cut  saw-timber 
passed  to  hiui,  his  conveyance  alone  to  the  defendant  is  sufficient ;  or  even  if  the 
trust  )«  niendy  executory  (as  to  all  of  which  the  arguments  above,  as  to  Mrs. 
Enianu.-rs  part,  will  apply),  yet,  I  take  it,  allowing  the  right  to  have  passed  to 
hiiu  to  cut  the  tind)er,  his  conveyance  of  the  land,  and  that  right  as  cestui  que 
trust  alone,  Ib  sufncient  to  vest  the  right  in  the  defendant  for  his  lifetime  ;  see  the 
ca«e  Kllioll  vs  Anrntronn,  2  Blackf.,  1!)8  (found  in  2  liquify  Digest,  4S3),  wliich 
aayw,  tliat  "  tlio  estate  of  a  re^itni  que  trust  may  be  sold  and  conveyed  by  him,  as 
well  as  any  otlu-r  ewfate."  If  this  be  law,  and  the  cestui  que  trusthad  this  right, 
he  lia«  parted  from  it  for  his  lifotimo.     All  of  which  is  respectfully  submitted. 

J.  W.  MrQUEEN. 
12th  May,  1841. 

I  will  only  add  tliat  Mrs.  Einnmi.l  has  a  numerous  family  of  children  now  living. 


*35]  TERREL    ET    AL.    VS.    EASTERLIXG.  371 

*Dudleii,  for  Appelleex.  The  first  ground  of  appeal  assumes  that  the  restni  ^^r,. 
f]\ip  trust,  being  in  possession  wlien  the  trespass  was  committed,  tJiat  tlie  '• 
plaintiffs,  who  are  the  trustees,  cannot  maintain  this  action  ;  and  secondly,  that 
the  plaintiffs  never  took  upon  themselves  the  execution  of  the  trust,  or  exercised 
any  authority  in  relation  to  the  trust  estate.  So  that  the  first  inquiry  is,  could  the 
plaintiffs  sue  at  all,  as  trustees  ?  and  the  second  is,  if  they  could,  would  not  the 
circumstance  of  the  cental  que  trust  being  in  possession,  prevent  them  from  main- 
taining this  action  ? 

If  the  legal  estate  is  in  the  trustees,  they  are  the  proper  persons  to  sue  for  an 
injury  to  the  land,  unless  precluded  by  the  objection  arising  from  the  want  of 
possession.  In  general,  he  who  has  the  legal  right  should  bring  the  action  for  an 
injury  done  to  it.  The  ground  taken,  assumes  that  the  trustees,  in  this  case,  had 
not  the  legal  right,  because  they  had  never  exercised  any  authority  over  the  trust 
estate,  or  taken  upon  themselves  the  execution  of  the  trust.  The  fact  is  not 
admitted,  that  the  trustees  ever  have  so  disrobed  themselves.  They  may  not  have 
been  very  diligent  or  watchful  over  the  interests  of  their  cestui  que  trusts,  but  they 
have  been  siiificiently  so,  to  secure  the  very  objects  for  which  the  trusts  were 
created.  They  have  suffered  the  property  to  remain  in  the  hands  of  those  who 
were  to  be  benefitted  by  it,  and  have  had  no  active  agency  in  its  management, 
simply  because  their  interference  was  unnecessary.  Their  part  was  fully  acted,  in 
seeing  that  the  corpus  of  the  estate  was  not  wasted.  They  have  exercised  ii  > 
authority  over  it,  because  no  attempt  has  been  made  to  defeat  the  objects  of  the 
trust.  Would  an  officer  forfeit  his  commission  because  he  did  not  "  charge 
bayonet"  in  time  of  peace,  when  the  foot  of  an  enemy  was  not  upon  the  land? 
Would  a  trustee  be  in  a  worse  condition,  because  he  did  not  ride  over  the  triist 
estate  and  direct  the  farming  operations,  when  the  cestui  que  trust  had  no  need 
whatever,  for  his  services,  and  could  do  much  better  without,  than  with  him  ?  It 
is  enough,  as  with  the  officer,  that  he  comes  forward  when  he  is  needed.  In  fact, 
the  position  taken  by  the  appellant,  when  reduced  to  its  simplest  terms,  is  this — 
that  a  trustee  loses  his  authority,  because  he  does  not  seek  opijortunities  to 
exercise  it  unnecessarily. 

*It  is  submitted,  that  in  point  of  law,  a  trustee  to  whom  the  legal  estate  n^op 
is  conveyed,  remains  the  owner  of  it,  until  he  renounces  his  authority  by  *-  "^ 
deed,  whether  he  assumes  the  management  of  the  trust  estate  or  not.  Cruise's 
Dig.  Title,  xxxii.,  c,  26,  par,  2,  3,  4.  To  divest  himself  of  the  title  he  must 
disclaim  by  deed.  This  is  the  only  evidence  of  his  refusal  to  accept.  The  bare 
inactivity  of  a  trustee  cannot  have  that  operation.  This  doctrine  is  again  asserted, 
Cruise's  Dig.,  Title  xii.,  c.  4,  par.  59. 

It  is  not  pretended  that  the  plaintifl's  in  this  case  have  so  disclaimed.  On  the 
contrary,  if  such  had  been  their  wish  or  intention,  the  appellant  might  have 
availed  himself  of  this  part  of  his  defence,  viz.  :  procuring  them  to  do  so  before 
the  trial.  With  two  exceptions,  all  the  trustees  reside  within  the  limits  of  the 
district  where  this  action  was  brought,  and  were  accessible  to  the  appellant,  who 
might  have  consulted  them  as  to  their  wishes  in  relation  to  a  disclaimer.  And  as 
an  additional  circumstance,  one  of  them  was  present  at  the  trial,  and  witnessed 
its  progress  from  the  beginning.  So  much  then,  for  the  right  of  the  plaintiflFs  to 
sue  as  trustees,  disconnected  with  the  question  arising  out  of  the  possession. 

As  to  this,  which  is  the  second  inquiry  arising  out  of  the  appellant's  first  ground 
of  appeal,  the  appellee  will  endeavor  to  maintain,  1st.  That  the  landlord  may 
bring  the  action,  unless  the  tenant  has  a  right  to  the  possession,  in  exclusion  of  all 
others.  This  is  to  be  inferred  from  what  is  said  in  1  Ch.  PI.,  175,  that  witliout  an 
exclusive  interest,  case  is  the  proper  remedy.  By  which,  may  be  understood,  that 
unless  the  tenant  has  an  exclusive  interest  in  the  possession,  he  cannot  maintain 
trespass ;  so,  also,  in  1  Ch.  PL,  174,  it  is  said  the  action  lies,  however  temporary 
the  interest,  if  it  be  in  exclusion  of  others.  So  that  it  would  seem,  that  to  deprive 
the  landlord  of  the  right  to  bring  this  action,  he  must  have  given  to  his  tenant  an 
exclusive  interest  in  the  possession.  The  true  principle,  perhaps,  is  this — that 
whenever  the  landlord  has  the  right  of  property,  and  the  right  of  immediate 
possession,  he  may  maintain  this  action,  in  any  case  where  the  defendant  is  not 
in  possession.     It  is  laid  down  in  1  Ch.  PI.,  179,  that  trespass  cannot  be  main- 


372  COLUMBIA,     DECEMBER,    1841.      VOL.  II.  [*36 

^.,„,  tainecl  where  the  right  of  possession*  is  in  reversion,  which  justifies  the 
'  ^  inference,  that  it  can  be,  where  the  right  is  not  in  reversion.  The  owner  is 
always  constructively  in  possession,  where  there  is  no  one  to  dispute  that  right 
with" him.  This  action  was  sustained,  where  there  was  an  agent  in  possession,  to 
prevent  depredations,  though  the  agent  cultivated  a  part  of  it  for  himself.  3  McC, 
4i4.  This  must  have  been,  because  the  agent  had  no  exclusive  right,  and  that 
the  owner  could  retake  the  possession  whenever  he  pleased.  That  to  maintain 
trespass,  the  jilaintiif  must  hare  possession,  is  no  less  the  law,  in  relation  to  actions 
brought  for  injuries  to  real,  than  to  personal  property.  It  has  been  often  decided, 
that  in  actions  of  trespass,  brought  for  injuries  to  personal  property,  it  is  sufacient, 
that  the  plaintiff  has  the  rl(/ht  of  inunediate  jiossession.  In  Archbold's  Civil 
Pleadincs.  22,  it  is  said,  that  if  an  injury  is  done  to  a  horse,  whilst  in  possession 
of  a  bailee  for  hire,  the  owner  must  bring  case,  and  not  trespass  ;  but  that  trespass 
lies  where  the  horse  was  only  lent.  This  must  be,  because  the  owner  had  the 
right  to  reduce  the  horse  to  possession  at  any  time.  To  the  same  point  is  8  Johns, 
Re]i.,  432,  where  it  is  said,  that  to  maintain  trespass  the  plaintiff  must  have  such 
a  riglit  as  entitles  him  to  reduce  the  goods  into  possession  at  any  time.  So,  also, 
is  i  Hill,  404.  Thus  far,  the  appellee  has  endeavored  to  demonstrate,  that 
although  a  tenant  maybe  in  possession,  where  a  trespass  is  committed  upon  land, 
yet  tlie  owner  of  the  land  may  maintain  this  action,  if  the  tenant  has  not  such  an 
Interest  in  the  premises  as  is  inconsistent  with  the  landlord's  right  of  immediate 
possession.  2d.  The  appellee  will  attempt  to  show,  that  a  cestui  que  trust  in 
possession,  is  Irat  a  bare  occupant  under  the  trustee,  and  that  his  possession  is  not 
inconsistent  with  the  right  of  immediate  possession,  which  the  plaintiff  should 
have,  in  order  to  entitle  him  to  maintain  this  action. 

The  authorities  on  this  jjoint  are  Jeremy  on  Equity,  27,  where  it  is  said,  that  the 
possession  of  the  trustee  is  the  possession  of  the  cestui  que  trust.  And  in  Esp.,  N. 
P.,  page  432,  it  is  laid  down,  that  the  possession  of  the  latter  is  the  possession  of 
the  former.  That  this  relation  should  be  so  intimate  and  amicable,  results  from 
the  duties  of  tlie  former,  which  consist  in  the  defence  of  the  land,  the  permanency 
^qo-i  *of  the  profits,  and  the  execiition  of  estates.  Cruise  Dig.,  Title  xii.,  c.  4,  par. 
I  -'  4..  To  perform  these  duties,  it  is  necessary  that  the  trustee  should  have  the 
power  at  all  times  to  enter  upon  the  estate,  for  the  protection  of  the  interest  of 
the  cestui  que  trust.  The  former  cannot  acquire  a  title  under  the  statute  of  limita- 
tions. 3  AlcC,  467.  Their  jjossessions,  then,  Weing  one  and  the  same,  are  not 
inconsistent  with  each  other,  and  the  trustee  has  not  only  the  right  of  possession, 
but  the  legal  possession  itself,  through  his  cestui  que  trust.  3d.  The  appellee 
submits,  tliat  a  cestui  que  trust,  in  possession,  is  but  a  tenant  at  will  to  the  trustee; 
and  if  so,  that  the  latter  may  maintain  this  action  for  a  trespass,  injurious  to  the 
fieeliold.  As  an  authority  on  the  first  branch  of  this  jiroposition,  see  1  Cruise  Dig., 
412,  3  pai-.,  where  it  is  said,  that  a  cestui  que  trust,  in  possession,  is  considered  in  a 
Court  of  law  as  a  tenant  at  will,  to  the  trustee.  See  also  1  Chitty  Ceu'l.  Pr.,  750. 
As  to  tlie  second  branch,  see  1  Hill,  2(10,  where  it  is  laid  down,  that  a  landlord  may 
bring  trespass,  qwire  clausum  frcyit,  for  an  injury  to  the  freehold,  though  a  tenant 
at  will  was  in  possession. 

Tlie  foregoing  authorities  seem  to  establish,  that  the  plaintifl's  in  this  case  may 
claim  the  riglits  of  trustees,  and  that  one  of  those  rights  is,  to  bring  the  present 
action  for  an  injury  (cutting  trees)  to  the  freehold,  though  their  cestui  que  trust 
was  in  posst-ssion. 

The  >ccond  ground,  taken  by  the  appellant,  is,  that  by  the  words  of  William 
]'l<-(lg(i's  will,  the  trust  was  executed  in  the  cestui  que  trust,  and  therefore,  that  he 
iilonc  ^-liouid  bring  the  action. 

Wlicther  a  trust  is  executed  or  not,  depends  upon  the  intention  of  him  who 
cn-ated  it,  as  manifested  by  the  instrument  declaring  the  trust.  1  Cruise,  Dig., 
414,  par.  lit.  It  sliall  not  be  executed,  when  any  object  is  to  be  effected  by  the 
legal  estate  remaining  in  the  trustees.  1  Hill,  41:3,  as  when  made  for  the  separate 
UHc  of  a  married  woman,  1  Cruise  Dig.,  413,  par.  15— do.,  414,  par.  19;  or  as  was 
the  case  in  1  Hill,  413,  where  the  trust  was  to  protect  the  property  from  being 
s  old  for  C.  P.'s  debts,  and  to  provide  a  home  for  his  family.  So  that  the  (juestion 
«3'.-|  •'"''"'«.  wa.s  tliere  any  object  to  be  effected  by  declaring  this  trust,  and  «would 
the  execution  of  the  trust  defeat  that  object  ?     This  depends  upon  the  words 


^39] 


TERREL   ET   AT.    VS.    EASTERLING. 


of  the  will,  from  which  we  must  collect  the  intention  of  the  testator,  and  then 
determine  whether  liis  intention  woulil  he  defeated  in  declaring  this  trust  executed. 
The  words  of  the  will  are  (so  far  as  they  relate  to  the  disposition  made  of  the 
tract  of  land  here  trespassed  upon),  "in  trust,  nevertheless,  to  penuit  my 
daughter,  Mary  Ann  Emanuel,  to  use  and  enjoy  the  same,  to  her  sole  and  separate 
use,  without  the  control  or  interference  of  her  husband,  during  the  term  of  her 
natural  life,  and,  after  her  death,  to  convey  the  same  to  the  heirs  of  her  body," 
&c.  Here  there  is  an  object  to  be  effected,  viz. :  to  permit  the  testator's  daughter  to 
iise  and  enjoy  the  same,  without  the  control  or  interference  of  her  husband.  If 
this  trust  is  to  be  construed  as  executed,  then  the  whole  estate  will  be  placed 
under  the  control  of  her  husband,  and  thus  defeat  the  very  object  wliich  the 
testator  had  in  view  in  creating  it.  So,  then,  there  is  an  object  to  be  effected  by 
confining  the  legal  title  in  the  trustees  ;  and  the  Court  will  not  construe  this  trust 
executed,  particularly  as  it  was  made  for  the  separate  use  of  a  married  woman,  in 
whose  favor  the  Courts  will  ever,  if  possible,  so  construe  a  devise  made  for  their 
benefit.     1  Cruise  Dig.,  413.  par.  15. 

The  third  ground  of  appeal  requires  no  comment,  as  it  is  already  answered  by 
the  remarks  made  upon  tlie  first  and  second. 

The  fourth  assumes,  that  the  testator  reserved  the  right  to  cut  saw-timber  from 
this  tract,  which  right  was  bequeathed  to  P.  W.  Pledger  for  life,  who  sold  the  same 
to  defendant's  father,  and  that  to  confirm  the  title,  the  land,  with  this  right,  was 
levied  on,  and  sold  by  the  Sheriff  to  the  defendant,  under  an  execution  against  the 
testator  himself.  It  is  conceded,  that  such  a  reservation  was  made  ;  but  it  is  denied 
that  P.  W.  P.  ever  made  such  sale.  There  was  no  evidence  of  it  on  the  trial.  It  is 
also  insisted,  that  under  tlie  words  of  the  will,  this  reserved  right  did  not  jiass  to 
P.  W.  Pledger  at  all,  and  was  altogether  undisposed  by  it.  The  words  ax>plicable 
to  this  question  are,  "«//  my  lands  which  T  have  not  hereinbefore  disposed  of'' 
Would  a  right  to  cut  saw-timber  pass  under  the  word  "  lands  ?"  It  *would,  r^L^a 
if  such  a  right  may  be  classed  as  real  estate.  Is  it?  Timber,  growing  upon  '- 
land,  is  a  chattel  interest,  1  Comyn  on  Contracts,  74.  So  is  Wheat.  1  N.  Y.  Dig., 
558.  If  so,  then  the  right  to  cut  timber  growing  upon  this  land,  could  not  pass 
under  the  words,  "all  my  lands." 

There  was  no  evidence,  that  the  Sheriff  sold  the  right  to  the  defendant's  father; 
His  sale-book  shows  positively  that  he  did  not.  In  fact,  is  such  a  right  capable  of 
levy  and  sale,  by  a  Sheriff,  under  execution?  See  Bac.  Abr.,  Title  Sheriff,  N.  5, 
where  it  is  said,  that  "  if  one  be  a  tenant  for  years,  without  impeachment  of  waste, 
and  a  fi.  fa.  come  put  against  him,  the  Sheriff  cannot  cut  down  and  sell  timber, 
for  the  tenant  had  only  power  to  do  so,  and  no  interest,  as  he  hath  in  standing 
corn,  which,  upon  a  f.  fa.  against  him,  the  Sheriff  may  sell."  In  this  case  there 
was  but  a  power,  which  the  Sheriff  could  not  levy  iipon  or  sell.  It  is  conceded, 
that  he  sold  a  part  of  tlie  testator's  land :  but,  admitting  that  he  had  the  authority 
to  levy  upon  the  reserved  right  in  question,  this  cannot  avail  the  defendant,  unless 
he  put  in  execution  and  sold  that  right.  His  own  sale-book,  as  well  as  his 
evidence  on  the  trial,  established  most  conclusively,  that  he  neither  levied  upon 
or  sold  it.  His  deed  to  the  defendant's  father  conveys  it,  but  that  is  mere  waste 
paper,  without  a  previous  levy,  iipon  all  that  the  deed  purports  to  convey.  The 
only  view  in  which  the  defendant  can  expect  to  be  benefitted  is,  by  showing  that 
this  right  was  appurtenant  to  the  tract  which  he  bought,  and  passed  to  the 
purchaser  by  the  sale  of  the  land,  as  an  incident  follows  its  principal.  To  be 
appurtenant,  it  must  arise  from  the  express  words  of  the  testator's  will,  or  from 
the  long  asserted  and  exercised  use  of  the  right  to  cut  timber  from  the  particular 
tract  on  which  trespass  now  sued  for  was  committed.  No  one  will  pretend  that 
the  testator  has  made  it  appurtenant,  by  his  will ;  then,  it  remains  for  the 
defendant  to  show  that  he,  and  those  under  whom  ho  claims,  have  exercised  this 
right,  without  interruption,  for  the  space  of  twenty  years.  The  testator  died  in 
1825  ;  his  widow  died  in  1832,  having  occasionally  cut  timber  upon  the  tract,  now 
in  possession  of  the  plaintiff's  cestui  que  trust,  though  not  without  frequent 
complaints  and  interruption  on  his  part.  The  same  state  of  things  continued  on 
the  part  of  P.  W.  *Pledger  and  defendant's  father,  until  March,  1840,  wlu-n  ^., 
this  action  was  brought.  So  that,  neither  from  long  continued  use,  from  the  '- 
express  words  of  the  testator's  will,  from  the  sale  of  the  Sheriff,  or  from  private 


874       COLUMBIA,  DECEMBER,  1841.   VOL.  II.       [*41 

I'outract  with  P.  W.  Pledger,  can  the  defendant  establish  any  right  to  cut  the 
timber  in  question. 

Tlie  appellant's  fifth  ground  has  been  anticipated  in  the  remarks  made  upon  the 
fourth. 

The  attention  of  the  Court  is  particularly  called  to  the  report  of  the  presiding 
Judge,  which,  in  every  instance,  speaks  of  the  ^' right''  to  cut  saw-timber,  and  not 
vi  the  .-iaic-timber  itself.  If  the  defendant  cannot  establish  liis  right  to  cut  timber, 
under  the  sale  by  the  Sherifi",  he  must  show  that  P.  W.  Pledger  sold  it  to  him, 
and  that  he  had  a  right  to  do  so. 

Curia,  per  O'Neall,  J.  The  only  ground,  which  will  be  considered, 
is  the  fourth.  For  the  judgment  to  be  pronounced  upon  it,  will  dispose 
of  this  case.  The  testator,  in  the  third  clause  of  his  will,  after  the  death 
of  bis  wife,  devise  to  the  plaintiffs,  as  trustees  for  the  use  of  his  daugh- 
ter, Mary  Ann  Emanuel,  "the  following  tracts  of  land,  one  tract  where 
Mr.  Emanuel  now  lives,  and  the  lower  half  of  a  tract,  lying  between 
Hereudeues  Prong  and  Crooked  Creek,  nest  to  Mr.  Crossland's  land,  (the 
sawing  timber  excepted.")  Is  this  exception  good  ?  If  it  is,  the  plain- 
tiffs are  not  entitled  to  recover.  For  the  defendant  cut  none  other,  than 
the  sawing-timber,  in  which  the  plaintiffs  would,  in  that  event,  have  no 
interest.  I  propose  to  examine  this  question,  with  the  aid  of  such 
lights,  as  authority  may  give.  For  it  is  one  of  strict  law  ;  and  if  the 
exception  be  consistent  with  it,  no  one  can  say  it  is  contrary  to  the  intent 
Df  the  testator.  His  words  plainly  show,  that  he  did  not  intend  to  devise 
"the  sawing  timber."  To  begin  with  Lord  Coke,  Co.  Litt.  41,  a,  it  will 
be  found,  that  after  speaking  of  a  reservation,  he  says,  "  and  note  a  diver- 
sity, between  an  exception,  (which  is  ever  of  part  of  the  thing  granted, 
and  of  a  thing  in  esse,)  for  which  exceptis,  salvo,  propter,  and  the  like  be 
apt  words ;  and  a  reservation,  which  is  always,  of  a  thing  not  in  esse, 
*ioi  '-"^^  newly  created,  or  reserved  out  of  the  land  or  tenement.   ^Poterit 

''■^  enim  quis  rem  dare  ei  partim  rei  reiinere,  vel  partim  de  pertin- 
entiis  et  ilia  pars  quam  relinet  semjyer  cum  eo  est  et  semper  fuit.  But 
out  of  a  general,  a  part  may  be  excepted,  as  out  of  a  manor,  an  acre,  ex 
verba  (jeneroli  aliqwd  excipitur  and  not  a  part  of  a  certainty,  as  out  of 
twenty  acres,  one.  "  This  quotation,  in  its  quaint  English  and  Latin,  is 
not  exactly  clear,  at  first  view.  But  the  meaning  is,  when  there  is  a  con- 
veyance, by  general  words,  covering  an  entire  whole,  made  up  of  such 
quantities,  or  things  as  may  be  separable,  in  such  a  case,  an  exception  of 
a  part  is  good,  and  does  not  pass  under  general  words.  It  would,  how- 
ever, be  different,  where  the  words  defined  the  precise  quantity  conveyed, 
as  twenty  acres  ;  in  such  a  case,  an  excei)lion  of  one  acre,  being  incon- 
sistent with  the  i)revious  grant,  could  not  be  allowed.  Api)ly  the  law, 
thus  explained,  to  this  case,  and  it  is  plain,  the  exception  is  good.  For 
Ihe  dfvise  is  of  two  tracts  of  land,  by  general  words,  except  the  sawing 
timber.  The  devise  of  the  land  would,  unless  restricted,  carry  limber 
.-landing  ui)on  Die  land.  Yet  it  is  but  a  part  of  the  land,  which  the  tes- 
tator might  have  severed  from  it,  or  sold  to  another,  and  being,  therefore, 
a  sf'pnrabic  i)nrt,  it  might  be  excepted.  But  it  is  unnecessnry  to  follow 
nj)  tliis  matter,  through  the  various  authorities,  to  which  reference  might 
be  made.  The  substance  of  them  all,  will  be  found  in  Preston's  edition, 
of  She))pard's  Touch.^tone,  mnrg.  page,  78.  1st.  vol.  In  that  authdrity, 
the  following  pa.ssages  are  fuiuid.  "And  if  one  grant  land,  excepting 
the  timljer  trees  iherciqK.n,  or  excepting  the  trees  thereupon;  or  if  a 


^42] 


TERREL    ET    AL.    VS.    EASTERLING.  375 


man  sell  a  wood,  exccjitiiip;  twenty  of  the  best  oaks,  and  show  which,  in 
certain,  (or  to  be  taken  at  his  election,  or  by  assignment  of  tlie  grantee  ;) 
these  are  good  exceptions."  So,  if  one  have  a  manor,  wherein  is  a  wood, 
called  the  great  wood,  and  he  grant  his  manor,  excepting  all  the  woods 
and  under-woods,  that  grow  in  the  great  wood,  and  all  the  trees  that 
grow  eli;evvhere,  this  is  a  good  exception."  These  sentences  show  plainly, 
that  an  exception  of  timber  trees  is  good,  provided  it  be  sufficiently  defi- 
nite, to  ascertain  what  was  meant.  'Vhe  only  objection,  which  could  be 
urged  to  the  exception  under  the  will  before  us,  would  be,  that  the  words 
"  sawing  timber,"  did  not  define,  sutficiently,  the  timber  intended  *to  r^  -  o 
be  excepted.  But  there  can  be  no  force  in  that  objection,  when  it  ^ 
is  conceded,  as  it  is  by  the  report,  that  none  but  timber,  of  the  character 
described  in  the  will,  was  cut.  Independent,  however,  of  this,  the  terms 
"sawing  timber,"  are  of  as  certain  meaning,  as  "timber  trees"  in  Eng- 
land, or  "rail  timber"  in  this  State.  They  mean  such  timber,  as  is  pro- 
per to  be  sawed  into  boards  and  scantlin.  In  the  pine  region,  it  would 
be  confined  to  pine  timber.  In  oak  and  hickory  land,  it  would  embrace 
all  the  other  varieties,  which  are  sawed  and  used  in  boards,  or  scantlin. 
The  motion  for  a  nonsuit  is  granted. 

Richardson,  Evans,  Earle,  Butler,  and  Wardlaw,  JJ.,  concurred. 

Abstract  fkom  the  will  of  Wm.  Pledgee. 

1st.   All  the  real  and  personal  estate,  given  to  widow  for  life. 

2nd.  A  tract  of  land,  to  Wni.  E.  Pledger,  and  negroes. 

3d.  To  John  Terrel,  Josiah  J.  Evans,  James  Forness,  James  Irby,  and  W.  E. 
Pledger,  the  tract  of  land,  whereon  Emanuel  lives,  (the  sawing  timber  excepted.) 
and  eight  negroes;  "in  triist,  nevertheless,  to  permit  my  daughter,  Mary  Ann 
Emanuel,  to  use  and  enjoy  the  same,  to  her  sole  and  separate  use,  without  the 
control  or  interference  of  her  husband,  during  the  term  of  her  natural  life,  and 
after  her  death,  to  convey  the  same  to  the  heirs  of  her  body.  But  should  my  said 
daughter  die,  leaving  no  heirs  of  her  body,  surviving  her,  then  I  give  the  said 
above  lands  and  negroes,  to  the  said  (trustees,)  to  permit  my  son,  Philip  Williams 
Pledger,  to  use,  occupy,  and  enjoy  the  same,  during  his  natural  life,  and  after  his 
death,  to  convey  the  same  to  the  heirs  of  his  body." 

4th.  Another  tract  of  land  and  negroes,  to  same  trustees,  for  Caroline  Williams, 
with  limitation  similar  to  the  above,  with  a  devise  over  to  Mrs.  Emanuel,  to  hold 
by  her,  as  in  the  3rd  clause. 

5th.  To  same  trustees,  "  all  my  land,  which  I  have  not  hereinbefore  disposed  of," 
and  twenty-three  negroes,  "to  permit  my  son,  Philip  Williams  Pledger,  to  use  and 
enjoy  the  same,  during  his  natural  life,  and  after  his  death,  to  convey  the  same 
to  the  heirs  of  his  body.  But  should  he  die,  without  any  such  heirs,  then  the 
said  trustees  are  to  divide  tlie  same,  equally,  amongst  my  surviving  children, 
the  issue  of  any  deceased  child,  taking  the  share  of  any  of  my  children,  who  may 
be  then  dead.  But  the  shares  of  my  daughters,  Mary  Ann  and  Caroline,  are  to 
be  subje(;t  to  the  same  trusts  and  limitations  over,  as  the  estate,  the  use  pf  which 
is  hereinbefore  given  to  them.  This  clause  is,  however,  intended  to  prevent  my 
son,  Philiji,  from  wasting  the  property.  Therefore,  should  he  prove  to  be  indus- 
trious and  frugal,  I  do,  hereby,  authorize  and  empower  the  said  trustees,  or  a 
majority  of  them,  should  they  think  it  prudent  to  do  so,  to  convey  the  property 
hereinbefore  described,  to  him  absolute,  whenever  "he  shall  be  married,  and 
have  a  child  or  children,"  and  in  case  both  my  daughters,  Mary  Ann  and  Caroline, 
should  die  without  leaving  any  children  surviving  them,  then  I  give  the  estate, 
hereinbefore  left  to  their  use,  to  such  of  my  other  childi-en,  as  may  be  then  living, 
or  their  heirs.  r*44 

*6th.  Ehzabeth  Pledger,  Executrix,  during  life,  and  afterwards  the  trustees. 


376  COLUMBIA,     DECEMBER,    1841.      VOL.  IL  [*44 

Elizabeth  Pledger,  qualified  as  Executrix.     After  her  death,  no  one  else  has 
qualified. 
I  certify,  that  the  foregoing  is  a  correct  abstract  of  the  will,  of  Wm.  Pledger. 

JOS.  DAVID, 
Ordinary,  M.  D. 

April  30th,  1841. 

See  Clark,  et  al,  vs.  Way,  11  Rich.     An. 


John  M.  Felder  vs.  Henry  Bonnett. 

1.  On  a  question  of  location,  a  new  trial  will  more  readily  be  granted,  than  on 
mof?t  other  cases  depending  upon  facts,  in  consequence  of  their  near  approach 
to  questions  of  law. 

2.  Natural  boundaries,  in  questions  of  location,  are  to  prevail,  unless  there  may  be 
some  doubt  about  them,  and  this  doubt  is  certainly  removed  by  artificial  marks. 
In  such  a  case,  the  artificial  marks  will  have  efleet,  although  of  inferior  degree. 

3.  Where  a  survey  called  for  Dean's  Swamp  as  a  boundary,  it  was  held,  that  the 
creek,  or  main  stream  of  the  swamp,  was  intended,  and  not  the  outer  edge, 
or  margin  of  low,  marshy  land,  that  frequently  bounds  the  main  stream. 

4.  The  declarations  of  a  tenant,  after  he  has  aliened  his  right  and  interest  in  the 
land,  is  inadmissible  evidence  to  prove  where  a  line  ran,  or  a  tree  stood,  (a) 

Before  Richardson,  J.,  at  Orangeburgh,  Fall  Term,  1841. 

This  was  an  action  of  trespass  to  try  titles  to  a  tract  of  land,  lying  on 
Dean  Swamp. 

The  decision  of  the  case  depends,  mainly,  on  the  location  of  the  tract 
of  land  granted  to  William  Hall,  for  four  hundred  and  seventy-two  acres, 
in  January,  1792,  from  whom  the  plaintiff  deduced  title.  A  diagram  is 
annexed,  which  will  explain  the  questions  made,  as  to  the  location. 

A.  B.  C.  D.  E.  F.  and  G.  represent  the  tract  of  four  hundred  and  sev- 
enty-two acres,  granted  to  William  Hall.  M.  N.  0.  and  P.  is  a  grant  to 
one  Clarke,  for  two  hundred  acres,  dated  June,  1772,  now  owned  by  the 
jilaintill".  H.  I.  K.  and  L.  represent  the  lines  of  a  grant  to  Henry  Me- 
iMifiiael,  f(ir  ninety-seven  acres,  dated  23d  November,  1835,  devised  to 
defendant,  and  is  the  land  in  dispute.  Numbers  4  and  5,  are  two 
tracts  granted  to  Hall,  in  1801,  and  now  held  by  the  plaintiff.  The  tres- 
pass was  admitted.  1,  2,  and  3,  are  in  both  McMichael's  grant,  and  the 
grants  to  Clarke  and  Hall. 

*ifi1       *The  William  Hall  tract,  of  472  acres,  calls,  on  one  side,  for  the 
-I  "edge  of  Edisto  Swamp,"  and  on  the  other,  for  "Dean  Swamp," 
and  on  the  side  of  Dean  Swamp,  neither  course  nor  distance  are  given 
in  the  plat. 

It  was  insisted  for  plaintiff,  that  the  7'un  of  Dean  Swamp  was  intended, 
and   for  defendant,  that  the  edge  of  the  swamp.     No   mark  tree  was 

found  from  D.  to  A.,  and  tlie  course  and  distance  stopped chains 

Bliort  of  the  run  of  Dean  Swamp,  at  A.,  which  is  now,  and  has  been  for 
many  years  in  cultivation. 

On  tlie  part  of  defendant,  John  Corbctt  said,  that  at  a  survey  of  these 
lands,  some  twenty  years  ago,  he  was  present  with  William  Hall,  Mr. 
Coalter,  and  Major  Felder,  on  the  dividing  line,  M.  Q.,  and  they  found 
(«)  Bee  Laud  vs.  Lee,  2  Rich.  lO'J  ;  Kettles  vs.  Kettles,  4  Rich.  422.     An. 


45*] 


FELDER  VS.   BONNETT. 


377 


M 


/. 


1     \  '          \ 

\\  ^ 

11 ^ — 

E 


1) 


378  COLUMBIA,     DECEMBER,    1841.       VOL.  IL  [*46 

a  Pine  corner  somewhere  about  IS".,  and,  upon  that  occasion,  Hall  said 
he  had  not  run  to  the  creek.  Objection  was  made  to  the  admission  of 
Hall's  declarations,  because  made  long  after  he  parted  with  his  interest, 
in  1798.     The  objection  was  overruled. 

On  the  part  of  plaintiff,  Allen  Porter  stated  that  McMichael  admitted 
the  plaintiffs  claim,  before  he  run  the  97  acres,  and  offered  to  purchase 
a  small  ])ortion  within  the  lines  of  the  grant  which  he  obtained  in  1835, 
below  X.  R.  There  were  a  few  acres  cultivated  by  those  under  whom 
plaintiff  claims,  within  the  lines  of  the  McMichael  grant.  The  line  K.  I. 
does  not  define  the  edge  or  margin  of  the  swamp,  and  the  surveyors 
differed  as  to  the  number  of  acres  of  swamp  in  the  McMichael  grant ; 
and  they  also  differed  in  the  representation  of  Dean  Swamp,  in  con- 
nexion with  the  Clark  survey.  The  plaintiff's  surveyor  locates  the  line 
N.  0.,  on  the  western  side  of  the  run,  which  is  in  conformity  with  the 
original  plat,  whilst  the  defendant's  surveyor  intersects  the  run  with  that 
line. 

The  witnesses  stated  that  the  stream  is,  and  always  has  been,  called 
Dean  Swamp. 

The  jury  found  the  following  verdict :  "  We  find  for  the  defendant,  all 
the  swamp  laud  lying  within  the  new  survey  granted  to  H.  McMichael, 
in  Dean  Swamp,  that  is  not  covered  by  the  Clark  survey,  nor  the  survey 
made  in  the  Edisto  River  Swamp." 

^  I --1       *The  plaintiff  appealed,  on  the  grounds  : 

'-'  1.  Because  the  grant  to  William  Hall,  under  which  plaintiff  claims  to 
hold,  embraces  all  the  land  in  dispute,  and  being  older  than  the  grant  under 
which  defendant  claims,  the  verdict  should  have  been  for  the  plaintiff. 

2.  Because  the  evidence  clearly  established,  and  the  verdict  admitted,  the 
plaintiff's  claim  to  a  large  portion  of  the  land  in  dispute,  yet  the  jury  found  for 
■the  defendant. 

3.  Because  the  verdict  is  uncertain,  and  does  not  define,  or  settle  the  rights 
of  the  parties. 

4.  Because  the  declarations  of  Hall,  from  whom  plaintiff  deduced  title,  made 
long  after  he  had  parted  with  his  interest  in  the  lands,  ought  not  to  have  been 
admitted  in  evidence. 

Lastly.  Because  the  verdict  was  contrary  to,  and  without  evidence. 

Curia,  per  O'Neall,  J.  Question  of  location  approximate  so  nearly 
to  i)urely  legal  questions,  that  a  new  trial  is  more  readily  granted  for 
erfur  in  them,  than  in  any  other  class  of  cases  dependiiig  upon  facts. (w) 
For  rules  of  location  are  legal  rules,  and  the  facts  to  which  they  are  to 
be  applied,  arc  often  of  such  a  character,  that  there  can  be  no  mistake  in 
judging  here  of  their  effect.  The  first  rule  of  location  is,  that  natural 
l)oun(liiries  are  to  prevail,  unless  there  may  be  some  doul)t  about  them, 
and  this  doubt  is  certainly  removed  by  artificial  marks.  In  such  a  case, 
the  latter,  although  of  inferior  degree,  will  have  effect.  In  the  case  bfore 
us,  the  survey  of  William  Ilall  calls  for  Dean  Swamp  as  its  N.  K.  boun- 
dry.  The  only  difficulty  which  could  arise,  would  be,  w^hethcr  the  sur- 
veynr  called  for  the  swamp  of  tlie  creek,  or  the  creek  itself,  by  the  name 
'  !  I»';in  Swamp.  If  there  were  any  artificial  marks,  which  would  lead 
n.-.  i'»  <-oii(;lude  that  the  surveyor  stoi)ped  at  the  margin  of  the  swam]), 
then  we  would  be  at  liberty  to  adopt  it  as  the  boundary;  but,  in  their 

{<i)  Infra,  79.    2  Rich.  384  ;  G  Rich.  90.     An. 


*47]  FELDER   VS.    BONNETT.  319 

absence,  what  is  meant  by  Dean  Swamp,  must  be  decided  by  the  known 
and  estaljlished  understanding  in  this  State.  The  meaning  may  be  ascer- 
tained, by  appealing  to  the  usage  even  of  Orangeburgh,  in  this  behalf. 
Besides  f)ean  Swamp,  they  have  many  others,  such  as  Bull  Swamp,  and 
Coccaw  *Swanip.  This  name  is  appropriated  to  the  run,  and  not  r*^o 
to  the  swamp.  In  larger  streams,  such  as  Santee  and  Edisto,  the  L 
swamp  is  spoken  of  distinct  from  the  river,  but  in  creeks  with  a  margin  of 
swamp,  the  usage  is  universal  in  this  State,  to  speak  of  the  creek  and 
swamp  as  one.  In  this  case,  however,  I  do  not  think  there  is  any  dif- 
ficulty ;  for  the  surveyor  showed  that  he  intended  to  go  to  the  run,  by  the 
different  manner  in  which  he  called  for  the  southern  boundary.  He  there 
calls  for  the  edge  of  the  South  Edisto  Swamp.  When  he  calls  for  the 
N.  E.  boundary,  he  calls  for  it  as  Dean  Swamp,  and  represents  the 
stream,  and,  indeed,  judging  from  the  face  of  the  plat,  it  appears  that  the 
corner  stands  on  the  bank  of  the  stream. 

In  Coates  vs.  2IalihcicH,  (2  IS"  &  McC.  99,)  Little  Saluda,  in  Edgefield 
district,  was  represented  as  lying  within  the  southern  line  of  the  survey. 
It  was  held,  that  the  river  thus  represented,  must  control  the  location. 
So,  here,  the  grant  to  William  Hall  must  be  located  by  the  run  of  Dean 
Smamp.  It  is  true,  in  following  the  stream,  the  grant  to  Clarke  is  found 
to  run  beyond  the  creek;  and,  as  that  is  an  older  grant,  the  rule  govern- 
ing the  location  of  Hall's  grant  is  to  follow  the  run  of  the  creek,  until 
the  line  of  Clarke's  survey  is  reached,  and  then  to  follow  the  lines  of 
Clarke's  survey,  until  they  carry  the  survey  back  to  the  creek,  which  is 
then  to  be  pursued  to  South  Edisto  Swamp. 

When  this  is  noticed  properly,  it  explains  Hall's  declarations.  For  it 
was  on  the  line  M  Q.,  which  is  identical  with  the  line  of  Clarke's  grant, 
that  Hall  said  he  did  not  run  to  the  creek.  This  was  the  fact  at  that 
point,  for  Clarke's  grant  intervened.  But  we  do  not  think  Hall's  declara- 
tions were  competent  evidence.  They  were  made  after  he  had  conveyed. 
The  rule  is,  that  the  declarations  of  a  tenant  in  possession,  or  a  grantor, 
before  he  conveys  his  interest,  may  be  given  in  evidence.  Turpin  vs. 
Brennan,  (3  McC.  261.)  After  a  grantor  has  conveyed,  he  may  be 
sworn  to  impeach  his  own  title,  for,  in  that  case,  he  testifies  against  his 
own  interest,  and  this  shows,  at  once,  that  his  declarations  cannot  be  evi- 
dence. The  question  in  this  behalf,  is  like  that  arising  in  a  suit  upon  a 
note  of  hand,  when  it  is  passed  away,  and  the  declarations  of  the  payee, 
*after  he  parted  with  his  interest,  are  attempted  to  be  given  in  r^.Q, 
evidence.  In  Lightner  a<h.  Martin,  (2  McC.  214,)  it  was  ruled,  L 
that  they  were  admissible.  In  Leder  vs.  JSlartia  &  Patrick,  (id.  241,) 
it  was  ruled,  that  declarations  made  by  the  endorsee,  before  he  parted 
with  the  note,  were  competent;  and,  in  that  case,  Judge  Xott  stated  the 
true  rule.  "The  declarations,  acts,  &c  ,  relating  to  the  matter  in  dis- 
pute, made  by  a  person  while  he  is  interested,  is  good  evidence  against 
a  ]iarty  claiming,  subsequently,  under  such  person." 

The  motion  for  a  new  trial  is  granted. 

Richardson,  Evans  and  Btjtleb,  JJ.,  concurred.    Eakle,  J.,  absent. 
T.  W.  Glover,  for  the  motion.     3Ir.  Wilmore,  contra. 


380  COLUMBIA,     DECEMBER,    1841.      YOL.  H.  [*49 


William  Alexander  &  Brothers  vs.  Davidson  &  Davidson, 

A  sum.  pro.  brought  on  a  note  drawn  payable  to  William  Alexander  &  Brothers  ; 
pending  the  suit,  "William  Alexander  died.  On  the  trial,  the  presiding  Judge 
ordered  a  nonsuit — nonsuit  set  aside,  and  ordered  to  be  marked  abated,  it  being 
the  proper  order  that  should  have  been  made  under  the  circumstances. 

Before  Gantt,  J,,  at  Lancaster,  Fall  Term,  1841. 
This  was  a  summary  process,  on  the  following  note  : — 
"  Six  months  after  date,  we,  or  either  of  us,  promise  to  pay  William 
Alexander  &  Brothers,  forty-eight  dollars  and  100-75,  for  value  received. 
As  witness,  my  hand  and  seal.     June  30th,  1840. 

(Signed,)     "J.  F.  N.  Davidson, 
B.  F.  Davidson." 

^c^-,  *And  the  following  are  the  facts  reported  by  the  presiding 
-J  Judge  : — Jackson  Miller  was  sworn,  as  a  witness,  who  proved  the 
signatures  of  J.  F.  X.  Davidson  &  B.  F.  Davidson,  to  be  their  respective 
handswriting. 

Fowler  Williams,  also,  proved  the  handwriting  of  B.  F.  Davidson, 
affixed  to  the  note.  And  the  plaintiff's  counsel  admitted  that  William 
Alexander  was  dead. 

The  presiding  Judge  ordered  a  nonsuit,  on  the  ground,  that  the  suit 
abated  by  the  death  of  William  Alexander,  the  only  person  named  in  the 
note,  and  that  a  decree  could  not  go  in  favor  of  the  brothers,  as  survivors, 
without  designating  who  they  were,  in  the  process. 

The  ground  relied  on  in  the  appeal  is,  that  a  nonsuit  was  an  improper 
order;  tliat  if  the  suit  did  abate  by  the  death  of  William  Alexander,  that 
would  have  been  the  proper  entry 

As  the  suit  was  attempted  to  be  carried  on  in  behalf  of  the  brothers, 
after  the  deatli  of  William  Alexander,  quoad  the  brothers,  the  nonsuit 
was  properly  ordered. 

The  plaintiff,  from  this  order,  appealed,  and  moved  to  set  aside  the  nonsuit, 
and  for  a  new  trial,  on  the  following  grounds : 

1st.  Because  the  suit  did  not  abate  by  the  death  of  William  Alexander, 
notwitlistandiiig  the  names  of  the  Ijrothers  were  not  set  forth  in  the  plaintiff's 
process.  But  would  inure  to  the  brothers,  as  survivors  ;  and  his  Honor  erred 
in  ruling,  that  the  survivors  could  not  recover,  unless  their  names  were  set  out 
in  the  process. 

2d  Becau.se,  that  if  the  suit  did  abate  by  the  death  of  William  Alexander, 
his  Honor  erred  in  i»-ranting  a  nonsuit;  but  should  have  marked  the  case  on 
the  docket,  as  abated,  inasmuch  as  the  defendants  could  not  enter  up  their 
judgment  of  nonsuit  against  the  brothers  as  survivors,  unless  the  names  of  the 
brotiiers  had  i)een  set  out  in  the  process. 

3d.   IJccause  his  Honor  erred,  in  refusing  to  mark  the  case,  abated  ;  if,  in  fact, 

it  had  abated  by  the  death  of  William   Alexander,  and  in  granting  a  nonsuit. 

But  the   dercndants,  in   order  to   have   availed   tliemselves  of  the   delect,   or 

*5n   <^""i"'''*'""  "'  ^'"^  names  of  the  brothers,  in  the  *plaintiff's  process,  should 

J   have  j)leaded  the  same  in  abatement, 

WiUiams,  for  the  motion.  The  parties  wove  not  well  set  out  ;  but  the  objoidion 
was  not  taken  ;  1  Hill,  48.  The  death  of  William  Alexander  was  no  abatement, 
it  might  have  been  suggested;   Chev.  21.'}. 

WrI'jht,  funtra.     Chitt.  (Marg.)  I'lead.  25G. 


*51]  BENTLY   VS.    PAGE.  381 

Curia,  per  Richardson,  J.  When  the  plaintiff,  in  any  action  at  law, 
dies,  the  action  abates.  Because  there  is,  then,  no  person  remaining  to 
conduct  and  carry  on  the  action ;  and,  consequently,  the  power  of 
attorney  terminates,  and  the  case  is  out  of  court.  If,  therefore,  William 
Alexander  was  the  only  plaintilf,  his  action  aljated  by  his  death,  and  was 
out  of  court  from  the  time  of  his  death.  But  he  could  not  be  nonsuited, 
because  there  was  neither  a  plaintilf,  nor  any  action  remaining,  to  sustain 
a  nonsuit.  A  nonsuit  is  either  a  voluntary  letting  fall  the  action,  or  the 
nonsuit  is  ordered,  "in  invituni,^''  for  defect  of  evidence,  or  failure  in  law 
But,  in  either  case,  there  must  be  a  plaintiff  in  being.  See  Jacob's  Law 
Dict'y,  title,  "action,"  Rogers  vs.  Maddin,  2  Bail,  321 — in  order  to 
suffer  the  nonsuit.  The  proper  inquiry  of  this  case  is,  therefore,  whether 
there  was  any  plaintiff,  surviving  William  Alexander,  who  could  carry  on 
the  suit,  or  be  nonsuited?  An  action  may  be  sustained  in  the  name  of  a 
firm — as  in  the  case  of  Martin  &  Cornwell  vs.  Kelly,  (Cheves'  R.,  215,) 
without  setting  out  tlioir  christian  names.  And  I  presume,  in  that  case, 
if  Martin,  or  Cornwell  had  died,  the  survivor  miglit  have  still  carried  on 
the  action,  (Boyleslon,  et  al.  vs.  Gardes,  4  M'Cord,  144,)  because  two 
persons,  JNIarlin  &  Cornwell,  had  brought  the  action.  But,  in  the  case 
before  the  Court,  William  Alexander  is  the  only  person  named.  The 
terra  "Brothers,"  not  being  the  name  of  another  person,  but  merely 
indicating  that  he  had  partners  of  a  certain  consanguinity.  Possibly,  the 
process  miglit  have  been  amended,  by  inserting  the  proper  names  of  the 
brothers  of  Wm.  Alexander.  And  then  there  would  have  been  other 
plaintiffs.  But,  until  that  was  done,  there  could  be  no  plaintiff  before 
the  Court,  but  William  Alexander,  who  was  dead. 

It  follows,  plainly,  from  these  premises,  that  no  nonsuit  *could  be 
ordered.     And  the  case  ought  to  have  been  marked,  "abated  by  L 
the  death  of  the  plaintiff.     The  nonsuit  is,  therefore,  set  aside. 

O'Neall,  Evans,  Earle  and  Butler,  JJ.,  concurred. 

J.  Williams,  for  the  motion.      Wriyhl  and  3IcMullan,  contra. 


Samuel  W.  Bentley  vs.  Thomas  G.  Page. 

1.  Where  an  issue  has  been  made  up  to  try  the  validity  of  a  debtor's  schedule, 
and  a  day  appointed  by  the  Commissioner  of  Special  Bail,  for  that  purpose,  and 
the  jury  are  in  attendance — the  question  of  postponement  or  continuance,  be- 
comes a  question  of  discretion,  to  be  addressed  to  the  Commissioner,  who  will 
never  grant  the  motion,  unless  upon  the  most  satisfactory  showing. 

2.  A  plaintilf  will  not  be  permitted  to  add  new,  and  other  specifications,  to  his 
suggestions  of  fraud,  &c.,  against  a  debtor's  schedule,  after  the  issue  has  been 
made  up,  and  the  parties  are  ready  for  trial. 

3.  The  notes  of  the  Connuissioner  of  Special  Bail,  taken  on  the  examhiation  of  a 
debtor,  applying  for  his  discharge  under  the  prison  bounds'  Act,  on  his  pre- 
vious application  for  discharge  in  the  same  case,  and  before  the  specifications 
of  frau<l  were  filed,  is  inadmissible  evidence  to  go  to  the  jury,  on  the  trial  of 
the  validity  of  his  schedule.      Vide,  S.  P.  E.  Uyatt  tj-  Co.  vs.  John  Uill,  ante. 

This  was  an  appeal  from  a  verdict  before  William  Ray,  Esq.,  Clerk  of 
the  Court  and  Commissioner  of  Special  B.iil,  for  Union  District.     Page 


382  COLUMBIA,    DECEMBER,    1841.      YOL.  II.  [*52 

was  arrested  at  the  suit  of  Bentley,  the  plaintiff,  on  a  ca.  sa.,  and  on  filing 
his  schedule,  applied  to  be  discharged  under  the  prison  bounds'  Act, 
which  was  opposed  by  the  plaintiff,  on  several  grounds.  The  Commis- 
^^„-,  sioner,  after  examining  the  defendant,  refused  *to  discharge  him, 
J  and  directed  a  jury  to  be  empannelled  to  try  the  issues.  The  trial 
was  appointed  for  the  4th  August,  when  the  plaintiff  moved  to  postpone 
it  for  a  future  day,  on  account  of  the  absence  of  witnesses.  The  motion 
was  refused,  but  the  statement  by  the  plaintiff,  on  oath,  of  what  the 
absent  witnesses  could  prove,  was  allowed  to  be  read  iu  evidence,  and 
the  trial  proceeded.  The  plaintiff  then  moved  to  add  other  grounds  of 
objection  to  the  defendant's  schedule,  which  was  refused  by  the  Commis- 
sioner. Several  witnesses  were  then  examined ;  and  at  the  plaintiff's 
instance,  the  defendant  himself  was  sworn  and  examined  ;  after  which, 
the  plaintifiPs  counsel  proposed  to  read  in  evidence,  the  notes  of  the 
defendant's  former  examination  before  the  Commissioner,  taken  down  in 
writing  by  him.  This  was  also  overruled  by  the  Commissioner;  and  the 
cause  was  submitted  to  the  jury,  who  returned  a  verdict  for  the  defendant. 
The  motion  here,  is  for  a  new  trial,  on  the  ground  of  error  in  law,  on  the 
part  of  the  Commissioner,  in  the  several  particulars  mentioned,  as  well  as 
of  error  on  the  part  of  the  jury,  in  finding  a  verdict  against  evidence. 

Curia,  -per  Earle,  J.  The  question  of  postponement,  was  addressed 
entirely  to  the  sound  discretion  of  the  Commissioner,  as,  in  like  cases, 
before  other  judicial  tribunals.  It  was  very  proper,  in  disposing  of  it, 
that  he  should  consider  the  interest  and  convenience  of  the  jury,  and 
others,  required  to  attend  this  extraordinary  court,  and  to  refuse  the 
motion,  except  upon  the  most  satisfactory  showing.  It  seems  to  us,  that 
the  mode  adopted  of  supplying  the  testimony  of  the  absent  witnesses, 
ought  to  have  been  sufficient  to  obviate  the  objection  here,  as  a  ground 
of  new  trial.  We  will  not  review  the  decision  of  the  Commissioner  on 
that  point.  He  was,  likewise,  clearly  right,  in  not  allowing  the  plaintiff 
to  add  other  grounds  of  objection  to  the  defendant's  schedule,  after  the 
issue  was  made  up,  and  the  parties  had  met  for  trial.  If  new  issues 
were  allowed  to  be  tendered  in  that  way,  the  proceeding  would  be  inter- 
minable, for  it  could  never  be  known  when  the  case  is  ready  to  go  to  the 
jury.  Besides,  the  defendant,  after  preparing  to  meet  the  objections  filed, 
^r  i-i  would  suddenly  *be  called  on  to  meet  others,  which  must  result  in 
-•  doing  him  injustice,  or  produce  protracted  delay.  We  approve  of 
the  rule  adopted  by  the  Commissioner,  to  confine  the  plaintiff  to  the 
grounds  of  oltjcction,  filed  in  writing,  at  the  time  the  jury  was  ordered  to 
be  empannelled.  The  Commissioner  was  also  right,  in  refusing  to  the 
plainlill's  counsel,  i)ermission  to  read  the  notes  of  the  first  examination 
of  the  defendant.  There  is  no  point  of  view,  in  which  they  can  be 
regarded  as  competent  evidence,  for  any  purpose.  The  plaintiff  had  the 
right,  and  used  it,  (under  the  Act  of  183G,)(a)  to  examine  the  defendant, 
on  oath,  touching  the  matters  in  controversy.  He  had,  likewise,  the 
right  to  prove  l)efore  the  jury,  that  the  defendant  had  sworn  differently 
before  the  Commissioner;  but  this  should  have  been  done  in  the  same 
mode  that  is  used  in  other  courts,  by  culling  a  witness  to  testify  what  the 

(rt)  6  Stat.  .550.     An. 


*54]  HYATT    ET  AL.    VS.    HILL.  383 

defendant  had  formerly  sworn  ;  any  bystander,  or  the  Coramissionor  liim- 
self,  wonld  suffice.  But  the  notes  taken  by  tlie  Coiuraissioner,  were  no 
more  evidence  than  the  notes  of  any  other  Judge.  lie  was  not  required 
to  reduce  the  examination  to  writinp; ;  and  the  notes,  taken  for  his  own 
satisfaction,  have  neither  the  authenticity  of  a  record,  nor  the  sanction  of 
an  oath.  The  whole  proceeding  before  the  jury  was,  de  novo,  not  a  con- 
tinuation ;  and  if  the  facts,  stated  by  the  defendant  on  the  first  examina- 
tion, were  to  be  regarded  as  proof  for  the  plaintiff,  the  jury  were  entitled 
to  hear  thein  from  the  mouth  of  the  party.  If  they  were  intented  to  con- 
tradict, or  discredit  him,  they  should  have  had  the  sanction  of  an  oath 
when  rehearsed  to  the  jury.  The  notes  were  incompetent  as  evidence, 
and  could  only  be  used  by  the  consent  of  both  parties.     Motion  refused. 

Richardson,  O'Neall,  Evans  and  Butler,  JJ.,  concurred. 

Dawkins,  for  the  motion.     Herndon,  contra. 

See  Mill.  Corp.  175.     An. 


*Q.  IIyatt  &  Co.  vs.  John  Hill.     Haviland,  Harrall     [*55 
«&  Allen  vs.  John  Hill. 

1.  The  Act  of  1836,  secures  to  creditors  the  right,  either  in  person,  or  by  counsel, 
to  examine  and  cross-examine  a  party,  who  is  about  to  take  the  benefit  of  the 
prison  bounds'  or  insolvent  debtors'  Act,  in  the  presence  of  the  Judge,  or 
Commissioner  of  Special  Bail,  befoi'e  whom  he  may  be  applying.  And  it  is  the 
privilege  of  such  person's  counsel,  (seeking  to  take  the  benefit  of  either  the 
prison  bounds'  or  insolvent  debtors'  Act,)  to  ask  the  defendant,  when  on  his 
examination,  such  questions  as  he  may  think  propei',  in  reply  to  such  as  have 
been  propounded  (and  answered)  by  the  adverse  counsel. 

2.  Whenever  the  Commissioner,  or  Judge,  permits  a  party  to  amend  his  schedule, 
after  specifications  have  been  filed,  suggesting  fraud,  &c.,  it  becomes  a  new 
schedule,  and  the  creditor  has  the  same  right  to  examine  the  party,  as  to  the 
amended  part  of  the  schedule,  as  he  had  to  the  original. 

3.  The  notes  of  evidence  of  the  Commissioner  of  Special  Bail,  taken  at  a  former 
application  of  a  debtor,  for  his  discharge,  under  the  prison  bounds'  Act,  is  not 
such  evidence  as  should  be  read  to  the  jury,  on  a  subsequent  trial,  as  to  the 
validity  of  his  schedule.  Such  testimony  is  incompetent.  S.  P.  vide  Bentlci/ 
vs.  Pa(/e,  reported  in  this  Volume. 

These  cases  were  tried  before  James  Kuykendall,  clerk  of  York  district, 
sitting  as  Commissioner  of  special  Bail.  The  defendant  was  arrested,  in 
the  first  case,  on  mesne  process,  and  in  the  other  on  final  process.  He 
filed  his  schedule,  and  demanded  his  discharge,  which  the  plaintiffs  by 
their  attorney,  resisted,  and  filed  with  the  Commissioner  various  grounds 
of  objection.  Tbe  defendant,  at  the  instance  of  the  plaintiffs'  attorney,  was 
sworn  and  examined  touching  the  schedule  and  his  interest  in  the  pro- 
perty. Upon  that  examination,  the  Commissioner  refused  leave  to  the 
defendant  to  answer  any  questions  propounded  to  him  by  his  own  counsel 
in  reply,  and  by  way  of  explanation.  The  Commissioner  permitted 
the  defendant  to  amend  his  schedule,  by  adding  several  articles  of  pro- 
perty, after  the  filing  of  the  plaintiffs'  grounds  of  objection,  and 
refused  permission  to  the  plaintiff's  attorney  to  have  him  sworn  and 
examined  touching  the  amended  schedule.     On  the  trial  before  the  jury 


.'384  COLUMBIA,    DECEMBER,    1841.       VOL.  II.  [*o5 

the  Commissioner  permitted  the  plaintiffs'  attorney  to  read  the  notes  of 
the  defendant's  former  examination,  in  evidence  against  him.  The  jury 
found  the  following  verdict.  "  We  find  on  the  ninth  suggestion,  that  the 
defendant  fraudulently  delayed  to  render  a  schedule  of  his  property  to 
give  a  preference  to  other  creditors,  and  thereby,  delaj^,  hinder,  and 
^--.-j  *defeat  their  rights,  (the  rights  of  plaintiffs)  ;  on  all  the  other  issues 
"^  J  we  find  for  the  defendant."  On  that  finding,  his  counsel  moved 
that  he  be  discharged,  on  assigning  the  schedule.  The  motion  was  re- 
fused, and  both  parties  being  dissatisfied  with  the  verdict,  furnished 
grounds  for  setting  it  aside,  and  for  a  new  trial  ; 

The  plaintiffs, 

1.  Because  the  defendant  was  allowed  to  amend  the  schedule,  after  the 
plaintiffs  had  filed  their  suggestion,  and  the  jury  had  been  sworn. 

2.  Because  the  Commissioner  refused  leave  to  examine  the  defendant,  on 
oath,  touching  the  amended  schedule. 

The  defendant, 

1.  Because  be  was  not  allowed  to  answer  questions,  propounded  by  his  own 
counsel,  in  reply  to  the  examination  of  the  plaintiffs'  counsel, 

2.  Because  the  Commissioner  permitted  the  plaintiffs'  counsel  to  read  the 
notes  of  the  defeudar(t's  examination,  as  evidence,  on  the  trial,  before  the  jury. 

Curia,  per  Earle,  J.  The  finding  of  the  jury,  in  these  cases  seems 
to  be  unsatisfactory,  both  to  the  plaintiffs  and  to  the  defendant ;  for, 
although  the  counsel  of  the  defendant  insists  that  it  is  not  sufBcient  to 
authorize  his  detention  in  custody,  yet  he  has  furnished  grounds  of  appeal ; 
and  whilst  the  counsel  of  the  plaintiffs  are  equally  clear,  that  the  defend- 
ant is  not  entitled  to  be  discharged,  they  likewise  appeal  and  insist  that 
there  was  error  on  the  part  of  the  Commissioner,  and  in  the  verdict  of 
the  jury.  That  was  in  these  words,  "  we  find,  on  the  ninth  suggestion, 
that  the  defendant  fraudulently  delayed  to  render  a  schedule  of  his  pro- 
perly, to  give  a  preference  to  other  creditors,  (over  the  plaintifi's,)  and 
thereby  delay,  hinder,  and  defeat  their  rights,  "(a)  And  it  has  been  plausi- 
Ijly  argued,  that  this  finding  does  not  convict  the  defendant  of  any  of 
those  acts,  which  deprive  him  of  his  right  to  be  discharged  ;  as  it  seems 
only  to  charge  him  with  having  intended  to  give  a  preference  to  other 
creditors,  and  with  having  intended  to  delay,  hinder,  or  defeat  the  plain- 
tiffs. And  several  of  the  Court  are  of  opinion,  that  the  verdict,  to  be 
effectual  in  detaining  the  defendant,  should  have  found  the  fact,  that 
another  creditor  was  preferred,  in  some  specified  particular,  or  that 
^-K-i  *the  i)laintifrs,  by  some  particular  act,  were  defeated  of  their  rights. 
-'  But  whilst  others  are  of  opinion,  that  the  verdict  would  avail,  in  its 
jtrescnt  shape,  we  are  all  of  opinion,  that  there  was  error  on  the  part  of 
the  Commissioner,  of  which  either  party  may  take  advantage  to  set  a«ide 
the  verdict;  and  first,  of  the  e.xceptions  taken  by  the  plaintiff.  There  is 
some  dilVerencc  of  o])inion  in  regard  to  the  propriety  of  allowing  the  defend- 
ant to  amend  his  schedule,  after  the  grounds  of  objection  were  filed,  and 
the  ouKssions  pointed  out.  But,  as  we  conclude  to  send  the  case  back 
for  a  new  trial,  we  will  permit  the  schedule  to  stand  as  amended  The 
Act  of  183G,(6)  however,  secures  to  the  creditors  in  person,  or  by  attorney, 
the  right  lo  examine  and  cross-examine  the  defendant  on  oath,  in  presence 

(a)  2  Stat.  137  ;  2  Rich.  403  ;  1  Ridi.  290.     An.  {h)  6  Stat.  556.     An. 


*5'7]  SMITH    VS.    COOK    &   NORRIS.  385 

of  the  Judge  or  Corarnissioiier,  toncliing;  the  trutli  of  schedule,  and  touch- 
ing the  nature  and  extent  of  his  property,  riglits,  and  credits,  liable  to  be 
assigned.  When  the  Commissioner  allowed  the  defendant  to  amend  his 
schedule,  by  inserting  other  articles,  or  assets,  it  became  virtually  a  new 
schedule,  and  the  creditor  had  the  same  right  to  examine  the  defendant, 
ou  oath,  touching  Ihe  articles  added,  that  he  had  in  regard  to  the  original 
schedule  ;  and  there  was  error  in  refusing  leave  to  examine  him.  So, 
too,  I  do  not  perceive  the  ground  ou  which  the  Commissioner  refused 
leave  to  the  defendant  to  answer  such  questions  as  were  propounded  by 
his  own  counsel.  He  had  a  right  to  be  assisted  by  counsel  present  with 
him  at  the  examination  ;  and  after  answering  all  the  questions  propounded 
l)y  the  adverse  counsel,  it  would  seem  but  fair  that  he  should  be  allowed 
to  make  such  further  explanations,  as  might  be  suggested  in  questions 
propounded  by  his  own  counsel.  He  is  not  required  to  answer  certain 
interrogatories  set  down  in  writing,  but  to  be  personally  examined,  and 
cross-examined  ;  which,  I  think,  implies  the  right  to  answer  questions  of 
his  own  counsel  in  reply.  "VVe  think  there  was,  likewise,  error  on  the 
part  of  the  Commissioner,  in  permitting  the  counsel  of  the  plaintiffs  to 
read,  as  evidence  to  the  jury  on  the  trial,  the  examination  of  the  defend- 
ant, in  writing  previously  taken  before  him,  when  the  defendant  applied 
for  his  discharge.  We  have  already,  at  this  term,  considered  that  ques- 
tion, and  have  held,  in  Bentley  vs.  Page,  (a)  *that  the  Commissioner's  [-:)«-  o 
notes  of  the  defendant's  examination  are  not  competent  evidence.  ^  "^ 
If  the  contesting  creditor  under  the  Act  of  1836,  may  have  the  benefit  of 
the  defendant's  examination  on  oath,  before  the  jury  he  must  be  sworn 
and  examined  in  their  presence. 

We  are  of  opinion,  therefore,  that  the  verdict  should  be  set  aside,  and 
a  new  trial  ordered  :  and  the  plaintiffs  have  leave,  if  they  think  lit,  to 
amend  their  ninth  ground  of  objection  to  the  defendant's  discharge,  so  as 
to  render  it  more  specific  and  certain. 

Richardson,  O'Neall,  Evans  and  Butler,  JJ.,  concurred. 

J.  D.  Witherspoon,  for  the  motion.     G.  W.  Williams,  contra. 


Geo.  W.  Smith  vs.  Cook  &  Norms. 

A  bond  given  under  the  Trover  Act  of  1827,  to  the  Sheriff,  is  not  assignable  ;  and 
the  assignee  of  such  a  bond  cannot  sue,  in  Ms  own  name,  on  the  bond. 

Before  Evans,  J.,  at  Laurens,  Fall  Term,  1841. 

The  plaintiff  sued  Cook  in  trover,  who,  with  Norris,  the  other  defend- 
ant, gave  a  bond  for  the  delivery  of  the  property,  if  the  i)laintiff  recov- 
ered. The  plaintifl;'  did  recover,  and  the  property  was  not  produced. 
The  bond  was  taken  to  the  sheriff,  under  the  Act  of  1827,(6)  who 
assigned  it  to  the  i-laintiff.  The  only  question  in  the  case  was,  whether 
the  bond  was  assignable.  The  bond  was  payable  to  the  sheriff  and  his 
assigns ;  and  as  it  was  given  for  the  benefit  of  the  plaintiff,  the  presiding 
Judge  thought,  and  so  decided,  the  action  would  lie. 

(rt)  Supra,  54.     An.  (b)  6  Stat.  337. 

Vol.  I.— 26 


386  COLUMBIA,   DECEMBER,    1841.      VOL.  II.  [*58 

The  defendant  moved  for  a  nonsuit,  because  the    bond  sued  on  was  not 
assignable,  so  as  to  enable  the  assignee  to  sue  ou  it,  in  his  own  name. 

^.  -,  "^  Curia,  per  Evans,  J.  By  the  common  law,  a  bond  was  not 
^^-l  assignable  so  as  to  authorize  the  assignee  to  bring  an  action  in  his 
own  name.  We  have  no  general  law  authorizing  such  actions.  The 
Act  of  1788(a)  does  not;  for  that,  it  has  been  decided,  relates  only  to 
money  bonds.  In  Gohh  vs.  Williams,  1  Hill,  375,  the  :;ction  was  on  a 
o-uardianship  bond,  given  to  the  Commissioner  in  Equity,  and  by  him 
assigned  to  the  plaintiff.  Feck  vs.  Glover,  (1  N.  &  McC.)  was  by  the 
assio-neee  of  the  sheriff,  ou  a  prison  bounds'  bond,  where  the  defendant 
bad  been  arrested  on  mesne  process.  In  both  these  cases,  it  \vas  decided, 
the  action  would  not  lie,  because  the  bonds  were  uot  made  assignable  by 
any  Act  of  the  Legislature.  In  all  cases,  where  the  assignee  may  sue  in 
Ids  own  name,  it  is  by  virtue  of  some  statutory  regulation.  The  Act  of 
1827,  under  which  this  bond  was  taken,  contains  no  such  provision,  and 
the  action  should  have  been  in  the  sheriff's  name.  The  motion  for  a 
nonsuit  is,  therefore,  granted. 

RicnARDSON,  O'Xeall,  Earle,  and  Butler,  JJ.,  concurred. 

Young,  for  the  motion.     3Ir.  ,  contra. 

See  9  Rich.  471 ;  11  Rich.  434 ;  4  Strob.  2S4  ;  4  McC.  218.    An. 


=^0]  *X.  Pope  vs.  A.  H.  Fort. 

Defendant  undertook,  in  writing,  to  pay  tlie  amoijlnt  of  a  note,  of  one  Groner,  to 
to  the  plaintiff,  when  he  should  be  in  possessioh  of  funds,  belonging  to  Groner. 
Held,  that  an  action  could  not  be  sujiported  against  the  defendant,  upon  his 
undertaking  ;  it  being  void,  for  want  of  a  consideration,  to  support  the  promise. 

Before  Bichardsox,  J.,  Richland,  Fall  Term,  1841. 

The  following  summary  of  the  facts,  of  this  case,  will  be  found  (with 
the  grounds  of  appeal,)  sufficiently  intelligible,  to  a  proper  understand- 
ing of  it. 

The  defendant,  Fort,  assumed  in  writing,  to  pay  the  plaintiff.  Pope, 
the  anKmnt  of  a  note  dratvn  by  one  Groner,  when  in  funds  for  the  maker, 
(see  the  note.) 

The  question  was,  whether  Fort  had  received  such  funds.  Davis 
proved  that  Fort  was  a  commissioner  of  public  buildings  ;  the  commis- 
sioners were  indebted  to  Groner  for  work  done;  and  Fort  thereupon 
made  the  written  assum[)tiou. 

Groner,  (being  lirst  released  by  Pope,)  then  swore,  that  Fort  was 
chairman  of  the  board  ;  and  after  the  assumption  to  Pope,  he  (Fort) 
jtaid  the  witness  one  hundred  dollars  for  his  work,  by  a  check  upon  Major 
Hart,  which  was  received,  but  his  note  never  was  taken  up,  as  he  wanted 
the  money  to  get  married. 

Major  Hart  also  [)roved  that  the  check  had  been  paid,  &c. 

(a)  5  Stat.  330. 


*60]  POPE   vs.   FORT.  3S7 

Isaac  Tickner  said  lie  bad  called  on  Fort  for  payment;  who  said  he 
would  pay  it,  as  soon  as  he  prot  the  money  for  Groner 

West  Caughman  said  Groner  called  for  his  money,  and  the  board 
authorized  Fort  to  draw  one  hundred  dollars  to  pay  him. 

Captain  Harman  said  Groner  applied  for  the  money,  i.  e.  fifty  dollars 
to  ))ay  the  witness,  and  fifty  dollars  to  get  married 

The  Court  held  Fort  liable,  upon  this  evidence,  and  decreed  for 
plaintiff. 

[  Copy  of  the  note,  referred  to,  and  of  the  defendanf  s promise.J 

"  65,75.  Three  days  after  date,  I  promise  to  pay,  to  N.  Pope,  or  bearer,  sixty- 
fire  dollars,  and  seventy-five  cts.  for  value  received  of  him,  the  24th  of  March. 
1840. 

(Signed,)  N.  W.  GRONER." 

*"  Mr.  Pope  left  in  my  hands  the  original,  of  which  the  above  is  a  copy,     |-^„, 
which  I  am  requested  by  the  maker  to  pay,  which  I  will  do,  whenever  his     L 
funds  come  to  my  hand. 

(Signed,)  A.  II.  FORT. 

Aug.  10,  1840. 

The  defendant  appealed  and  movadfor  a  7ionsit it,  ■a])on  the  ground,  that  the 
allegata  and  probata,  did  not  correspond,  in  this,  because  it  was  alleged  in  the 
process,  that  the  defendant  promised  unconditionally,  to  pay  the  note  of  N.  W. 
Groner,  when,  in  fact,  as  appeared  from  the  evidence,  he  only  promised  to  do 
so,  when  funds,  belonging  to  Groner,  should  come  to  his  hands. 

And  also,  to  reverse  the  decree  of  His  Honor,  upon  the  following  grounds  : 

1st.  Because  there  was  no  evidence,  that  any  funds  belonging  Groner,  ever 
came  into  the  hands  of  defendant :  And 

2d.  Because  the  defendant,  in  giving  the  order  on  the  Treasurer,  acted  in 
in  his  official  capacity,  as  chairman  of  the  Commissioners  appointed  to  super- 
intend the  building  of  the  Lexington  Court  House,  in  obedience  to  their  order, 
as  proven  by  the  witness,  Caughman,  and  had  no  power  or  authority  individually. 
to  retain  the  order  in  his  own  hands,  or  to  draw  the  money  himself,  the  said 
Commissioners  having  made  a  special  order,  that  Groner  should  be  paid  the 
amount  of  the  draft. 

3.  Because  the  promise  of  defendant,  to  pay  Groner's  debt,  was  without 
consideration,  and  therefore  void. 

Boozer,  for  motion,  said  the  allegata  and  probata  did  not  correspond,  Hilherson 
vs.  Paysinger,  1  Bail,  Rep.  on  2nd  ground.  He  said  there  was  no  consideration  to 
support  the  promise  ;  there  would  be  none,  until  funds  were  received,  cited 
Riley's  L.  Cases,  5(3.  Tlie  consideration  must  be  proved.  Powell  on  Cont.  343 
to  356  ;  5  J.  R.  6  lb.  272,  IS  J.  R.  145. 

Mr. ,  contra. 

Curia,  per  Earle,  J.  This  action  is  brought  against  the  defendant, 
on  his  alleged  undertaking,  to  pay  a  debt,  due  *to  the  plaintiff,  ^^^^-^ 
from  one  Groner,  by  a  note  of  hand.  The  promise  relied  on  is  in  L 
writing ;  and  so  far  complies  with  the  statute  of  frauds,  as  we  do  not 
now  require  the  consideration  to  be  expressed.  But  there  are  several 
objections  to  the  plaintiff's  recovery;  some  arising  out  of  the  process, 
others  out  of  the  paper  itself,  as  a  legal  as.sumpsit,  to  sustain  an  action. 
It  is  not,  itself,  a  note  of  hand,  importing  consideration;  and  none  is  set 
out  in  the  process.  If  we  dispense  with  that,  as  I  suppose  we  may,  under 
the  liberal  (perhaps  it  would  be  more  true  to  say,  loose,)  practice  in  that 
jurisdiction,  yet.  the  promise  to  jiay  is  on  a  contingency,  "  whenever 
liis  funds  come  to  my  hands."      2s ow  surely,  the   process  should  have 


388  COLUMBIA,   DECEMBER,    1841.      VOL.  II.  [*62 

alleged  the  receipt  of  funds,  and  when ;  with  a  refusal  to  pay.  But  sup- 
posing this  to  be  cured  too,  does  the  paper  itself,  and  the  proof,  authorize 
the  decree?  Regarding  it  as  an  undertaking  to  pay  the  debt  of  another, 
some  consideration  is  necessary ;  some  loss,  or  inconvenience  to  the  plain- 
tiif,  or  some  benefit,  however  slight,  to  Groner,  or  the  defendant ;  and,  I 
confess,  I  do  not  perceive  either.  There  is  no  stipulation  for  forbearance 
to  Groner,  much  less,  to  discharge  him,  in  consideration  of  the  defendant's 
promise.  The  defendant,  himself,  did  not  owe  Groner,  and  could  derive 
no  advantage  from  paying  his  debt.  The  plaintiiT  deposited  the  note 
v.-ith  defendant,  although,  it  was  payable  to  bearer;  this  was  no  transfer, 
but  only  to  enable  him,  whenever  Groner's  funds  came  to  hand,  to  apply 
them  and  deliver  up  the  note  to  Groner.  On  considering  the  terms  of 
the  paper,  and  the  whole  complexion  of  the  case,  I  think  it  apparent, 
that  this  could  only  be  done  with  Groner's  consent ;  and  that,  in  fact, 
there  was  no  undertaking,  on  the  part  of  the  defendant,  to  pay  the  debt 
out  of  his  own  funds.  Groner  made  no  assignment  of  the  fund  to  the 
plaintiff,  so  as  to  make  it  money,  had  and  received,  in  the  hands  of 
defendant,  to  the  use  of  the  plaintiff.  He  requested  Fort  to  pay  the 
note,  and  Fort  said  to  the  plaintiff,  I  will  do  so,  as  he  has  requested  me, 
when  his  funds  come  to  my  hands.  Before  that  event  happened,  Groner 
changed  his  mind,  and  countermanded  the  order  to  pay  the  plaintiflf,  as 
it  was  competent  for  hira  to  do.  So  far  from  assigning  the  fund  to  the 
plaintiff,  by  drawing  on  Fort,  in  his  favor,  there  does  not  appear  to  have 
^(>o-\  heen  any  communication*  on  the  subject,  between  Groner  and  the 
-'  plaintiff.  As  between  him  and  the  defendant,  it  was  competent 
for  him  to  revoke,  at  pleasure,  any  order  given  for  the  payment  of  the 
money,  before  it  was  paid.  If  the  undertaking  was  not  such  as  I  have 
supposed,  and  the  understanding  of  the  parties,  likewise,  why  was  not  a 
check  drawn  at  once  on  the  treasury,  in  favor  of  the  plaintiff,  to  pay 
Groncr"'s  note  ?  I  think  there  was  no  legal  undertaking  to  pay,  founded 
on  any  consideration,  proceeding  from  the  plaintiff,  to  sustain  this  action. 
The  defendant  might,  gratuitously,  have  undertaken  to  collect  this  note 
for  the  plaintiff;  if  he  did  so,  and  the  note  was  intrusted  with  him  for 
that  purpose,  and  he  entered  upon  the  performance  of  the  trust,  he  would 
be  bound  to  act  honestly,  and  would  be  answerable  for  the  damages,  if 
he  were  guilty  of  culpable  negligence.  The  action  here,  however,  does 
not  rest  upon  these  grounds,  which  it  will  be  time  enough  to  consider 
when  they  come  before  us.  The  motion  to  set  aside  the  decree,  and  to 
enter  a  nonsuit,  is  granted. 

O'Neall,  livANS  and  Wardlaw,  JJ.,  concurred. 

Butler,  J.,  dubilante. 

RicHAiiDSO.v,  J.,  dhsenting.  The  only  important  question  in  this 
case,  ia,  whether  there  was  any  legal  consideration,  to  support  the 
written  nssumplion  of  Fort,  to  pay  the  note  of  Groner  ;  and,  thereby, 
render  his  assumption  binding  in  law,  according  to  the  statute  of  frauds. 
Groner  had  requested  Fort  to  pay  the  note  to  Pope;  whereupon,  Fort 
t(Jok  possession  of  the  note,  which  was  payable  to  bearer ;  Fort  then 
made  his  written  assumption,  upon  a  copy  of  the  note.  What  was  the 
consideration  ;  whether  the  note  was  assigned,  by  the  delivery  to  Fort, 


*63] 


POPE   VS.    FORT.  389 


or  was  placed  in  hi.s  bands,  as  an  indemnification  only  ?  Still,  Fort 
either  accepted  it  as,  and  for  a  guaranty,  or  as  assignee  by  the  delivery. 
In  either  case,  it  was  a  security  for  his  assumption  and,  therefore,  a 
valuable  consideration.  If  he  took  the  note  as  his  own,  he  was  fully  paid 
for  his  assumption.  If  he  took  it  as  a  bailee,  he  then  held  a  i)ledge  for 
*his  indemnity  from  loss.  Fort  could  not  lose,  in  any  event.  For  r.^^  , 
he  undertook  to  pay  the  note,  only  in  case  he  received  Groner's  L 
money.  But  he  chose,  for  greater  security,  to  hold  the  note,  while,  at 
the  same  time,  Groner  was  precluded,  by  Fort's  assumption,  from  all 
claim  to  his  money.  Here  were,  then,  two  considerations  for  Fort's 
assumption;  the  deposit  of  the  note,  payable  to  bearer;  and  Groner's 
preclusion,  from  his  right  to  the  money,  by  his  own  authority.  Thus 
Fort  stood  secured,  and  counter  secured.  And  either  was  enough  ;  if 
we  are  to  regard  the  doctrine,  so  well  laid  down  in  Eggart  vs.  Bm^nnhire, 
in  3  McCord's  Reports,  163,  and  so  fully  reconsidered  in  the  case  of 
Filer  &  Givens.  To  show  how  small  a  consideration  is  required  to 
support  an  express  moral  contract,  and  to  prevent  good  faith  being 
broken,  for  want  of  it,  see  the  cases  collected  in  note  "A."  in  the  ap- 
pendix to  3d  McCord's  Reports.  In  the  case  of  Duncan  vs.  Gadsden, 
Harper,  364,  the  written  assumption  on  Ogden's  note,  was  this;  "the 
within  amount,  I  promise  to  i)ay,  when  in  funds,  for  Robert  Ogden  ;  the 
])eriod  not  to  exceed  six  months."  But  the  funds  were  not  proved,  and 
the  case  failed.  But,  suppose  the  funds  had  been  received,  then,  would 
not  the  consideration  have  been  good,  or  must  the  consideration  be, 
always,  in  preaenti  '}  In  such  cases,  I  apprehend,  that  the  consideration 
is  money  expected  ;  which,  when  realized,  by  the  receipt,  verifies  the  con- 
sideration ;  which  was  before,  (like  the  assumption  itself,)  executory  and 
conditional  only.  It  is  like  the  acceptance  of  a  bill,  if  the  funds  of  the 
drawer  should  come  to  hand,  which  is  a  binding  contract,  only,  if  the 
funds  come.  Here,  the  consideration  is  executory,  not  in  presenli,  yet 
good  in  law.  But,  without  urging  the  doctrine  so  far  ;  I  ask,  if  Groner 
could  have  recovered  the  money  of  Fort,  after  Fort  had  assumed  to  i)ay 
it,  at  Groner's  request,  to  Pope  ;  and,  also,  held  Groner's  note,  payable 
to  'bearer,  for  the  very  amount  ?  He  could  not.  Then,  was  not  Fort 
equally  bound  to  pay  it  to  Pope  ?  He  certainly  could  not,  legally,  keep 
it  for  himself.  Substantially,  Fort  had  the  conditional  release  of  Groner 
for  the  money,  had  fulfilled  the  condition,  by  his  express  assumption  to 
Pope.  But,  he  prudently  took  the  note,  for  perfect  safety  sake.  How 
these  facts  can  be  construed  into  no  consideration  "^for  his  assump-  ^^  . 
tion,  I  cannot  perceive.  It  seems  to  me,  that  the  statute  was  L 
fulfilled  to  its  letter ;  and  the  rale  of  the  common  law,  airainst  "  nuda 
Xmcta,^^  to  its  reason  and  spirit.  In  the  case  just  decided,  of  Moo7'e 
vs.  jDenson,(^)  Ballard  jdaced  in  the  hands  of  Hemphill,  the  note 
of  Denson,  to  counter-secure  Colclough,  for  his  assumption,  to  pay 
Ballard's  debt  to  the  bank.  Xow  if  Colclough,  upon  this  security,  to  pay 
Ballards'  debt  to  the  bank,  was  not  bound  so  to  pay,  then  the  assign- 
ment of  Benson's  note  to  him  was  a  nudum  pactum  and  void,  and  our 
decision  is  erroneous.  But,  suppose  Colclough  had  afterwards  actually 
received  the  money  of  Denson,  and  had  chosen  to  pay  it  over  to  Ballard, 

(rt)  MS. 


390  COLUMBIA,    DECEMBER,    1841.       VOL.  II.  [*65 

instead  of  tlie  bauk,  how  could  that  have  lessened  his  liability  to  tlie 
banl<  ?  This  was  what  Fort  did;  he  received  the  money,  realized  the 
consideration  of  his  promise  to  Pope,  and  chose  to  pay  the  money  over 
to  Groner,  instead  of  Pope.  But,  was  not  both  he  and  Colclough  in  the 
coraraoa  situation  of  a  surety,  who  undertakes,  in  writing,  to  pay  the 
debt  of  a  third  party,  after  being  indemnified.  Or  of  a  broker,  who 
lends  his  name  for  a  premium,  or  upon  counter-security  being  first 
placed  in  his  own  hands.  But  the  proper  way  to  adjudge  the  case, 
would  be  to  take  it  at  the  moment  before  Fort  paid  the  money  to  Groner, 
and  ask,  to  which  of  the  parties  would  the  Court  have  assigned  it,  under 
the  statute  of  frauds,  which  so  wisely  requires  an  assumption  in  writing, 
in  all  such  cases,  and  under  the  common  law,  which,  as  wisely,  requires 
some  consideration,  or  good  cause  for  the  assumption,  to  be  either 
expressed  or  proved  ?  The  rest  of  the  case  is  not  very  important,  but  I 
would  save  it  from  any  estoppel  in  law,  which  would  go  to  fix  a  principle 
for  other  cases. 


*G6]  *H.  A.  Culpepper  vs.  E.  B.  Wheeler  et  al. 

In  an  action  of  trespass  to  try  titles,  to  a  tract  of  land,  in  order  to  give  in  evidence 
an  attested  copy  of  the  deed,  under  wliich  the  party  claims  the  land  in  dispute, 
it  is  only  necessary  to  prove  the  existence  of  the  original  and  its  hiss.  That  it 
cannot  be  found  after  a  diligent  and  proper  search,  with  those  who  should  have 
the  possession  of  it. 

Before  Earle,  J.,  at  Marion,  Fall  Terra,  1841,  who  made  the  subjoined 

report. 

The  land  in  dispute  was  granted  to  Henry  Lambert.  The  plaintiffs  are 
the  heirs  at  law  of  Mary  Godbold  Smith,  and  claimed  one  half  of  the 
tract  under  a  deed  of  conveyance,  said  to  have  been  made  by  Laniljcrt, 
tlie  grantee,  to  Mary  Godbold  Smith  and  her  sister,  Julia  Ann  Smith. 
The  original  deed  was  not  produced,  and  an  office  copy  was  allowed  to 
be  read  in  evidence  under  the  following  proof.  The  deed  purported  to 
bear  date  9lh  February,  1805,  and  conveyed  two  hundred  acres,  the  lower 
part  of  the  tract  granted  to  Lambert,  by  specific  boundary.  James  Tait 
married  Julia  Ann  Smith,  one  of  the  grantees  in  the  deed,  and  entered 
upon  her  portion  of  the  land  in  1825,  under  that  deed,  which  she  had  in 
iier  jiossession  at  the  time  of  her  marriage.  He  and  his  wife  sold  and 
conveyed  their  part  of  the  land  to  Benjamin  Holt,  and  he  supposed  he  gave 
the  original  deed  to  Il(;lt,  who  afterwards  sold  and  conveyed  that  part  of 
the  land  to  the  defendant  Wheeler,  who  has  been  in  jiossession  ever  since. 
The  (Iced,  from  'I'aitand  wife  to  Holt,  was  executed  in  1830,  and  from  Holt 
to  the  defendant  in  1832.  Holt  is  now  living  in  Mississippi.  It  appeared 
further  in  evidence,  that  Wheeler  had  also  claimed  to  have  accpiired  title  to 
llif  moiety  of  the  land  belonging  to  Mary  G.  Smith,  or  to  the  plaintill's,  her 
ludrs,  ulthougli  he  did  not  set  up  this  title  on  the  trial.  A.L.  Scarborough 
purcliascd  this  part  of  the  land  from  the  defendant,  and  took  a  convey- 
ance.    But  he  subsequently  sohl  and  re-conveyed  to  the  defendant.     The 


*6G]  CULPEPPER   VS.    TTIIEELER    ET    AL.  391 

original  deed  from  Lambert  was  not  in  liis  possession,  nor  did  he  see  it. 
If  delivered  by  Holt  to  the  defendant,  it  was  retained  by  him,  as  he  was 
in  i»ossession  of  the  remainder  of  the  land.  The  witnesses  to  the  oritri- 
nal  deed,  or  persons  bearing  the  same  names,  were  living  in  the  neigh- 
borhood at  *the  date,  but  are  now  dead.  The  deed  appeared  to  p^^_ 
have  been  proved  and  recorded  about  1828,  and  Levi  Oldliam,  before  ^ 
whom  it  purports  to  have  been  proved,  was  then  an  acting  Justice,  and  is 
still  living.  The  defendant  was  a  deputy  in  the  office  of  the  Clerk  and  Reg- 
ister at  tlie  same  time.  Written  notice  was  given  to  the  defendant  to 
produce  the  deed,  and  his  return  in  writing  was  read,  stating,  that  after 
diligent  search  among  his  papers,  the  deed  could  not  be  found. 

On  the  foregoing  proof,  I  allowed  the  office  copy  to  be  read  in  evi- 
dence, and  the  plaintiffs  obtained  a  verdict,  which  it  is  now  moved,  on 
behalf  of  the  defendant,  to  set  aside,  on  the  ground,  that  the  existence 
and  loss  of  the  deed  of  Henry  Lambert  to  Mary  G.  Smith  and  Julia 
Smith,  was  not  sufficiently  proved  to  authorize  the  admission  of  an  office 
copy  in  evidence. 

Darr/an,  for  motion.    1  Bay,  495  ;  1  M'C.  318;  2  Hill,  525  ;  Id.  542. 

Sims,  contra.  3  Stat,  at  Large,  303,  §  30,  A  deed  is  as  good  evidence  as 

the  original  and  ought  to  stand.     He  calls  for  a  review  of  Purvis  vs.  Robinson.    The 
Court  refused  permission  to  argue  that  question. 

Curia,  per  Earle,  J.  The  argument  on  the  part  of  the  defendant 
assumes,  that  in  order  to  admit  an  attested  copy  of  the  deed  from  the 
register's  office,  it  is  not  only  necessary  to  prove  the  existence  and  the 
loss  of  the  original,  but  that  there  should  be  some  proof  of  the  actual 
execution  ;  no  case  has  gone  thus  far.  In  Purvis  vs.  Jiobi)ison,(a)  it 
was  only  held  that  the  record,  or  an  attest  copy,  should  supply  the 
loss  of  the  original.  So  in  Dingle  vs.  Bowman,  and  in  Turnipseed 
TS  Hawkins,  1  McC.  177-272,  it  was  held  only  necessary  to  prove 
the  loss  of  the  original,  in  order  to  admit  the  attested  copy  as  secondary 
evidence.  The  cases  of  Peay  vs.  Pickett,  and  JPLaurin  vs.  Talbot, [h) 
have  introduced  no  change  in  the  rule,  but  relate  only  to  the  kind  and 
degree  of  evidence  which  shall  be  deemed  sufficient  to  establish  the  loss  of 
the  original ;  and  both  result  in  the  same  conclusion,  that  there  is  no  better 
way  to  prove  the  loss  of  a  thing,  than  to  show  that  it  has  been  sought  for 
*where  it  ought  to  be,  where  it  is  usually  kept,  and  might  be  ex-  r^/.q 
pectcd  to  be  found,  and  that  it  has  not  been  found.  It  is  true  Mr.  ^ 
Justice  Harper,  in  JPLaurin  vs.  Talbot,  sjjcaks  of  the  jn-oof  afforded  there, 
of  the  deed's  existence ;  and  says,  it  is  hardly  possible  to  prove  the  loss  of  a 
deed,  without  giving  some  evidence  of  the  existence  and  contents,  or  gen- 
eral purport.  The  evidence  in  the  case  before  us,  of  the  existence  of  the 
original  deed,  as  a  genuine  paper,  is  fuller  and  stronger,  than  it  was  in 
3PL'nirin  vs.  T'llbot,  and  of  the  same  kind.  Tait,  who  married  one  of 
the  grantees,  in  the  deed,  and  under  whom  the  defendant  derives  title, 
found  in  the  hands  of  his  wife,  at  the  time  of  their  marriage,  a  deed  pur- 
porting to  be  a  conveyance  from  Lambert,  such  as  the  plaintiffs  set  up 
for  the  land  in  question  ;  under  that  deed  he  entered  upon  the  land  as 
his  wife's  property,  and  held  possession  until  he  sold  to  llolt,  who  entered, 

(«)  1  Bay,  493.     .!«.  (6)  3  M'C.  318  ;  2  Hill,  525.     An 


392  COLUMBIA,   DECEMBER,    1841.      VOL.  II.  [*68 

and  afterwards  sold  to  the  defendant — and  he  has  been  in  possession  ever 
since,  claiming  title  to  the  moiety  of  Julia  Ann  Smith,  under  the  same  deed, 
the  existence  of  which  he  denies,  and  requires  to  be  proved.  The  entry 
of  one  of  the  grantees,  and  the  continued  possession  since  1825,  under 
her  title,  affords  abundant  evidence  of  the  existence  of  the  deed  as 
a  genuine  paper,  as  well  as  of  its  general  contents  and  purport ;  even  if 
the  cases,  on  the  construction  of  the  Act  of  17 31, (a)  required  such  proof. 
The  language  of  the  Act  is,  that  the  records  of  deeds,  "  duly  proved 
before  a'jastice  of  the  peace  in  the  usual  method,  and  recorded,  &c.,  and 
also,  the  attested  copies  thereof,  should  be  deemed  to  be  as  good  evi- 
dence, in  law — and  of  the  same  force  and  effect,  as  the  original  would 
have  been,  if  produced."  It  has  been  held  that  the  original,  if  in  exist- 
ence should  be  produced.  If  lost,  or  if,  after  proper  search,  it  cannot  be 
found,  its  being  proved  in  the  usual  mode,  before  a  justice  of  the  peace 
and  recorded,  is,  I  apprehend,  suCQcient  evidence  that  it  once  had  exist- 
ence. Xext,  as  to  the  evidence  of  its  loss.  It  was  delivered  to  Holt, 
who  conveyed  to  the  defendant,  in  1832.  The  title  deeds  should  accom- 
pany the  possession,  and  be  in  the  hands  of  the  owner.  And  it  is  a  rea- 
sonable conclusion  of  fact,  as  well  as  a  presumption  of  law,  that  when 
n-.nni  Holt  conveyed  to  the  defendant,  he  likewise  delivered  the  *title 
-^  deed.  Holt  is  a  resident  citizen  of  a  distant  State,  not  amenable 
to  process  issuing  here,  and  incompetent  as  a  witness,  if  he  were.  If  he 
did  not  deliver  it  to  Wheeler,  the  deed  may  well  be  considered  beyond 
the  reach  of  the  plaintiffs,  and,  therefore,  lost ;  and  if  delivered  to 
"Wheeler,  which  is  far  more  probable,  we  have  his  own  declaration,  in 
wriiing,  that  after  diligent  search  the  deed  cannot  be  found.  If,  under 
such  circumstances,  the  attested  copy  from  the  records  is  not  competent, 
the  registry  of  deeds  is  a  mockery.  The  whole  Court  agrees  that  it  was 
properly  received,  and  the  motion  is  refused. 

Richardson,  O'Xeall,  Evans,  Butler,  and  Wardlaw,  JJ.,  con- 
curred. 

Darrjan,  for  the  motion.     Sim?i,  contra. 

See  O'Neall  vs.  Lhell,  9  Ricli.  374  ;  Act  of  1843.   11  Stat.  255.     An. 


TiiK  Treasurers  vs.  The  Executors  of  McPherson. 
The  Same  vs.  The  Same. 

After  tlio  lai)so  of  twenty  years,  the  conditions  of  a  Sheriff's  bond  will  be  pre- 
sumed to  have  been  performed. 

Before  O'Xeall,  J.,  at  Gillisonville,  Beaufort  District,  Spring  Term,  1841. 

Those  were  actions  of  the  debt  on  the  official  bonds  of  Deveaux,  Ford 
and  Ferguson,  former  Sheriffs.  They  were  brouglit  to  recover  sums 
received  by  them  for  the  State,  and  with  which  they  were  respectively 
charged  on  the  l)Ooks  of  tlie  Treasury,  more  than  twenty  years  before 
action    was    broujjht.      The    only   question    made    in   the    cases    was, 

(a)  7  Stat.  ITU,  I  39  ;  See  Purvis  vs.  Robinson,  &c. 


*70]  LESLIE   AND  CALHOUN  VS.  TAGGART,  ET  AL.  393 

*whether,  after  a  lapse  of  twenty  years,  performance  of  the  duties,  p^.^^ 
conditioned  to  be  performed  in  an   official  bond,  would  be  pre-   ^ 
sumed.     The  presiding  Judge  held,  that  it  would.     The  plaintiffs  sub- 
mitted to  verdicts  for  the  defendants  and  appealed. 

Because  the  Court  erred  in  deciding'  that,  after  a  lapse  of  twenty  years, 
perforinaiice  of  the  duties  conditioned  to  be  performed,  in  an  official  bond, 
would  be  presumed. 

Curia,  per  O'Neall,  J.  "We  are  satisfied  with  the  decision  of  the 
Judge  below.  It  has  been  again  and  again  ruled,  that  the  presumption 
of  performance  of  the  condition,  upon  an  official  bond,  from  the  lapse  of 
time,  will  arise,  as  well  as  the  presumption  of  payment  of  a  money  bond. 
It  is  no  objection  that  the  State  is  the  party  against  whom  the  presump- 
tion is  set  up.  It  is  true  that  the  maxim  "  nullum  tempus  occurrit  regi,^^ 
applies  to  the  State,  but  by  that  I  understand  that  the  King,  in  England, 
find  the  State,  here,  cannot  be  barred  by  the  statute  of  limitations.  A 
legal  presumption  is  not  set  up  as  a  statutory  bar.  It  is  a  legal  conclu- 
sion after  the  lapse  of  twenty  years  (without  some  countervailing  proof,) 
that  a  fact  then  existed,  (which  cannot  now  be  proved,)  sufficient  to  defeat 
the  right  of  the  State.  Such  as  that  the  State,  twenty  years  ago,  granted 
a  tract  of  land,  or  received  the  money  charged  on  the  books  of  the  trea- 
sury against  the  Sheriffs,  Ford  and  Ferguson. 

The  motion  is  dismissed. 

Richardson,  Evans,  Earle,  Butler  and  Wardlaw,  JJ.,  concurred. 
Edwards,  Solicitor,  for  the  motion.     Singleton,  contra. 
See  11  Rich.  424.     lin. 


♦Leslie  &  Calhoun  vs.  James  Taggart,  et  al.,  sureties  of  r^^-, 
John  Taggart,  Sheriff.  '-    ' 

The  sureties  to  a  Sheriff's  bond  are  not  liable  for  the  costs,  incurred  in  establishing 
a  nulla  bona  return  against  their  principal. 

Before  O'Neall,  J.,  at  Abbeville,  Fall  Term,  1841. 

This  was  a  suggestion  filed  by  the  plaintiffs,  to  recover,  on  the  bond 
of  Jno.  Taggart,  late  Sherifl"  of  Abbeville  district,  the  cests  incurred  by 
them  in  establishing  a  nulla  bona  against  him. 

The  jtrcsiding  Judge  ruled,  that  the  sureties  were  not  liable  for  such 
costs,  and  therefore  quashed  the  suggestion.  From  this  decision,  the 
plaintills  appealed,  and  moved  to  reverse  the  same,  on  the  ground  of 
error,  in  the  decision  of  his  Honor,  the  presiding  Judge. 

Wilson,  for  the  motion,  cited  and  relied  on  2  Vol.  Stat.  HOG,  marg.  p.  1120, 
and  1  HUI,  398. 

Wardlaiv,  and  Perrin,  contra :  Submitted  the  case  without  argument,  or  refer- 
ence to  arrthority. 

Curia,  per  O'Xeall,  J.  In  this  case  it  is  only  necessary  to  look  into 
the  defendant's  bond,  to  decide  that  they  are  not  liable  for  the  costs  of 


394  COLUMBIA,    DECEMBER,    1841.      VOL.  II.  [*71 

cases,  to  establish  a  return  of  "nulla  bona,"  against  their  principal. 
The  condition  is  "  that  Jno.  Tagrffart  shall  well  and  trnly  perform  the 
duties  of  the  office  of  Slicriff,  of  Abbeville  District,  as  now,  or  hereafter 
required  by  law,  daring  the  whole  period  he  may  continue  in  office." 
Under  it  they  are  liable  for  money,  by  him  collected  and  not  paid  over, 
and  for  all  damages  sustained  by  his  failing  to  perform  his  duty  But 
they  have  not  undertaken  to  pay  the  costs  of  cases,  which  might  be 
brought  against  their  principal,  and  much  less  have  they  undertaken  to 
pay  the  costs  which  may  be  incurred,  in  establishing  a  nulla  bona.  The 
Legislature  required  the  plaintiffs  to  obtain  that  evidence,  before  they 
could  resort  to  the  sureties.  It  was  one  of  the  guards  interposed 
between  them  and  the  Sherift"'s  creditors.  But  there  is  nothing  in  that 
which  can  make  them  liable.  They  have  the  right  to  say  there  is  our 
bond,  according  to  it  we  will  pay,  beyond  it  we  will  pay  nothing.  The 
motion  is  dismissed. 

Gantt,  Richardsox,  Evans,  Earle,    and  Butler,  JJ.,  concurred. 
See  Supra,  21.    10  Rich.  445  ;  8  Rich.  413 ;  4  Rich.  212 ;  1  Strob.  27     An. 


*T2]  *JoiiN  W.  Smith  rs.  Jno.  Pickenpack. 

The  possession  of  a  small  slip  of  land,  for  ten  years,  (adversely,)  witli  a  fence, 
will  give  a  good  title  to  tlie  laud,  under  the  statute  of  limitations. 

Before  Butler,  J.,  at  Spartanburg — Extra  Term,  1841. 

This  was  an  action  of  trespass  to  try  title  to  a  small  slip  of  land  of 
fifty  yards  length,  and  one  link  in  breadth.  Or  it  might  better  be 
characterized  to  say,  that  it  was  to  try  the  right  to  a  fence.  Both  parties 
claimed  under  a  Mr.  Bearden,  who  had  divided  a  tract  of  land  between 
his  two  sons,  John  and  Ben.  The  plaintiff  claimed  under  Ben,  and  the 
defendant  under  John,  through  intermediate  owners  of  the  land  In 
182.3,  Wynne  Bearden,  the  son  of  Ben,  run  a  fence  from  the  road  to  the 
opposite  side,  on  what  he  supposed  was  the  dividing  line.  In  1826,  the 
defendant,  who  was  then  the  owner  of  the  other  part  of  the  land,  pe- 
titioned to  Wynne  Bearden  to  join  fences.  Permission,  however  was 
refused,  and  Pickenpack,  the  defendant,  to  enclose  a  new  ground,  run  his 
fence  obliquely  till  it  struck  Bearden's  fence,  at  a  ground  pole;  and 
thence  run  it  parallel  with  the  other  to  the  road,  interlocking  all  that 
way— so  that,  at  onetime,  there  were  two  fences  standing.  'One  dis- 
appeared, and  the  cpiestion  was,  whose  fence  had  been  left,  as  the  common 
dividing  fence  between  the  ])arties.  Dr.  Smith,  the  ])laintiff,  who  became 
the  owner  of  his  land  (the  Bi:n  Bearden  part)  in  1830,  contended  that 
the  orv/uv.y]  fence,  put  up  by  Wynne  Bearden,  was  left,  and  that  defendant 
had  joined  to  it— whilst  the  defendant  contended  that  plaintiff  had  taken 
down  his  fence,  and  joined  to  the  one  put  up  by  him  (defendant)  in  1826. 
The  evidence  was  satisfactory  that  the  plaintiff  had  joined  to  defendant's 
fence,  and  had  taken  his  away  sometime  in  1826,  or  1827.  The  jury  so 
found,  fur  they  foun<l  for  the  defendant.     According  to  the  finding,  the 


*72] 


SMITH    VS.    PICKENPACK.  395 


case  stands  tlius — for  fourteen  years,  defendant  has  had  his  fence  on  a 
small  slip  of  land,  originally  helonj^ing  to  plaintiif,  believin'o;  at  the  time 
he  made  the  fence  it  was  entirely  on  his  own.  The  jury  were  instructed 
that  the  land  thus  covered,  or  occupied  by  defendant's  fence,  became  his 
by  *the  statute  of  limitations,  and  that  he  had  a  right  to  the  fence  r^^^no 
on  the  land.  The  question  arose  upon  the  defendant's  right  to  L 
take  down  the  fence  which  he  had  put  up.  The  plaintiff  forbid  him 
taking  it  down,  and,  by  threats  of  violence,  drove  defendant's  hands  off 
while  they  were  moving  the  fence,  in  the  presence  of  their  master  and  in 
obedience  to  his  orders.  Before  the  defendant  undertook  to  move  his 
fence,  he  sent  plaintiff  word  that  he  was  going  to  do  so,  with  a  view  of 
opening  a  lane  for  the  neighbors  to  pass  through.  The  action  was 
brought  to  recover  damages  for  taking  di)wn  a  few  rails.  Under  these 
circumstances,  and  if  the  land  is  plaintiff's  he  had  a  right  to  recover 
something,  but  if  it  was  defendant's  he  ought  to  have  failed  in  his  action. 
On  one  occasion,  plaintiff  said  "they  were  going  to  join  fences,"  "or 
he  was  going  to  join  his  fence  to  defendant's,"  but  there  was  no  evidence 
that  defendant  had  ever  consented  to  it.  The  ground  that  it  was  a 
division  fence  by  the  consent  and  agreement  of  the  parties,  was  irrecon- 
cilable with  the  ground  assumed  by  plaintiff,  that  the  fence  was  entirely 
his  own,  and  that  he  had  permitted  defendant  to  use  it  at  sufferance. 
The  presiding  Judge's  opinion  was  in  conformity  with  the  finding  of  the 
jury,  that  defendant  was  justified  in  taking  away  his  own  fence  from  off 
his  own  land. 

The  plaintiff  appealed  on  the  following  grounds  : 

1st.  Because  his  Honor  erred  in  charging  the  jury  that  if  the  defendant  built 
the  fence  which  he  removed,  and  was  the  subject  of  the  trespass,  he  had  a  title 
by  the  Statute  of  Limitations,  when  it  was  admitted  that  the  fence  was  on  the 
plaintiff's  land,  and  the  defendant  only  claimed  to  have  built  the  fence,  and  held 
it  four  or  five  years,  when  the  plaintiff  joined  his  fence  to  it,  and  used  it  as  the 
enclosure  of  his  field  ever  since,  and  therefore,  if  defendant  assented  to  it,  he 
did  not  hold  adverse  to  plaintiff,  and  if  he  objected  to  it,  the  ])laintiff,  held 
the  fence  adverse  to  the  plaintiff's  claim,  and  iu  either  point  of  view,  there  was 
DO  statutory  title  in  defendant. 

2d.  Because,  whether  the  defendant  consented  to  the  joining  of  fences,  was 
a  fact  ujion  which  there  was  some  *evidence, — yet  his  honor  withdrew  r^- . 
that  question  from  the  jury.  L 

Curia,  per  Butler,  J,  The  jury  have  found  that  the  defendant  made 
the  fence  which  he  was  removing  and  that  he  has  used  it  as  his  own  for 
more  than  ten  years.  It  is  not  denied  that,  at  the  time  it  was  erected, 
the  defendant  believed  he  was  exercising  a  right  on  his  own  land,  or  land 
wdiich  he  believed  to  be  his  own,  and  it  is  conceded  that  he  has  acquired 
a  good  title,  by  the  statute,  to  every  inch  of  the  ground  included  within 
the  fence  ;  but  it  is  contended  that  the  land  covered  and  actually  occupied 
by  the  fence  itself  continued  to  be  the  plaintiff's,  as  he  had  joined  his 
fence  to  that  of  defendant.  There  was  no  evidence  that  plaintiif  had 
obtained  defendant's  consent  to  join  fences.  On  the  contrary,  I  think  it 
was  apparent  that  it  was  done  against  the  wishes  of  the  defendant.  Be 
that  as  it  may,  the  plaintiff's  possession  under  his  fence  was  only  to  the 
fence  of  the  defendant.  It  did  not  embrace  land  either  beyond  or  under 
it.    The  plaintiff's  actual  occupation  was  his  own  exclusively,  as  much  so 


396  COLUMBIA,    DECEMBER,    1841.       VOL.  IL  [*74 

as  if  be  had  held  it  by  the  wall  of  a  house  occupied  by  himself.  In  effect 
it  was  j^ossessio  j^edis  to  the  fence  and  under  it  a  possession  commencing 
too  under  circumstances  which  plaintiff  should  never  have  questioned;  as 
at  the  time  of  its  commencement  there  was  a  fence  on  plaintiff's  land 
indicating  its  utmost  limit  and  one  that  was  put  there  to  be  regarded  as 
an  actual  boundary.  We  are  all  well  satisfied  with  the  decision  below 
and  refuse  this  motion. 

Gantt,  Evans,  Earle  and  O'Neall,  JJ.,  concurred. 

Henry  and  Bobo,  for  the  motion.     H.  C.  Young,  contra. 

See  as  to  tenancy  in  common  of  division-fences,  2  Bail.  389  ;  3  Strob.  446.     An. 


^TS]      *The  Heirs  at  Law  of  Wolfe  vs.  William  Knotts. 

Where  the  verdict  of  a  jury  is  contrary  to  the  weight  of  evidence  in  a  cause,  and 
against  the  established  rules  of  location,  a  new  trial  will  be  granted. 

Before  Richardson,  J.,  at  Orangeburgh,  Fall  Term,  1841. 

This  was  an  action  of  trespass  to  try  titles.  The  land  claimed  by  the 
plaintiff  was  granted  to  John  Wolfe,  for  200  acres,  the  4th  May,  1715, 
who  conveyed  it  to  his  son,  Joseph  Wolfe,  14th  February,  1814,  and  the 
plaintiffs  are  his  heirs  at  law. 

On  the  location  of  the  land  to  John  Wolfe,  the  case  depended. 

The  annexed  diagram  will  more  clearly  explain  the  points  made,  and 
the  questions  to  be  decided. 

A.  B.  C.  D.  represent  the  plat  which  accompanies  the  grant  to  John 
Wolfe.  K.  E.  F.  and  G.  are  the  lines  of  a  grant  to  one  Robinson,  in 
1758,  and  B.  C.  and  L.  embrace  the  land  in  dispute.  The  corners  at 
A.  B.  C.  and  D.  are  marked  on  the  original  plat,  and  the  only  question 
was,  whether  a  corner  was  made  at  C  A  pine  is  called  for  at  that  point, 
on  an  island  in  Bull  Swamp,  which  the  surveyor  did  not  find.  A  hickory 
station  is  called  for  at  H.  on  the  line  D.  C,  and  is  found  at  the  proper 
distance.  All  the  other  stations  and  line  trees  on  the  lines  B.  A. — A. 
I),  and  D.  (J.  are  found,  and  an  island  is  found  in  Bull  Swamp,  corres- 
])on(ling  with  the  one  represented  in  the  original  plat,  and  at  the  correct 
distance  for  the  corner,  C.  On  which  some  of  the  witnesses  testified  that 
many  of  the  old  growth  of  pines  had  been  destroyed,  and  a  new  one  had 
spnnig  up. 

Samuel  Pearson  said,  that  he  was  present  at  a  rc-survey  of  this  land, 
about  thirty-two  years  ago,  with  the  grantee,  and  a  surveyor  named 
Johns,  or  Jones.  The  grantee,  he  understood,  was  about  to  convey  it  to 
one  of  his  sons. 

Tliey  then  found  a  pine  corner,  standing  on  an  island,  about  the  point 
C.  '1  hey  did  not  cross  Bull  Swamp.  A  line  was  marked  somewhere  in 
the  direction  of  B.  C.  David  King  was  on  the  island  in  1836,  and 
found  no  corner  at  C.  ;  but  James  Wolfe,  one  of  the  plaintiffs,  who  was 
5^^„n  *i)resent,  said  it  had  Ijccn  there.  Jolni  King  proved  that  James 
-   VVolfe,  a  few  years  since,  said  there  had  been  a  corner  on  the  island. 


♦Tr 


77] 


"WOLFE   VS.    KNOTTS. 


397 


*78] 


398  COLUMBIA,    DECEMBER,    1811.      YOL.  II.  [*76 

but  it  could  not  be  found,  and  if  so,  his  mother  would  hold  all  to  Knott's 
line. 

The  grant  to  John  Wolfe,  on  the  line  B.  C,  called  for  lands  of  the 
said  John  Wolfe,  and  the  plaintiffs  claimed  to  extend  the  line  D.  C.  to 
L.  ;  contending  that  the  corner  at  C.  not  being  found,  they  would  go  to 
the  boundary  called  for.  The  only  evidence  that  the  land  granted  to 
Kobinson  ever  belonged  to  Wolfe,  was  derived  from  the  surveyor, 
Barrillon,  who  stated,  that  in  locating  a  tract  of  land  for  one  Mack, 
which  was  run  in  1792,  it  called  for  this  tract  as  Wolfe's;  and  Mclnnis 
also  stated,  that  about  1826,  he  surveyed  the  lands  of  the  estate  of  Joseph 
Wolfe,  for  partition  among  his  heirs,  and  the  Robinson  tract  was  then 
Wolfe's.  Mclnnis  also  said,  in  locating  the  John  Wolfe  tract  then,  he 
stopped  at  the  corner  C,  and  that  he  has  since  located  a  warrant  in  favor 
of  one  Wm.  P.  Wolfe,  embracing  the  triangle,  B.  C.  L.,  and  other  lands 
])eiow  on  the  swamp,  and  that  a  grant  was,  he  believes,  issued  to  said 
William  P.  Wolfe. 

Barrillon  and  Mclnnis  thought  the  corner  at  C.  was  never  made; 
I    D.  A.  Murphy  said  he  would  locate  by  the  corners. 

Xo  marked  tree  was  found  on  the  line  I).  L.,  beyond  the  hickory  at  H. 
*Barrillon  stated  that  he  called  on  Pearson  to  show  him  where 
the  pine  corner  stood ;  he  pointed  out  a  place  near  at  hand,  which 
did  not,  by  a  few  yards,  correspond  with  the  distance.  He  then  showed 
a  pine  log,  fifty  yards  off,  and  said  that  he  could  not  say  exactly  where 
the  corner  stood  ;  he  could  not  say  if  Johns  made  the  corner,  or  found 
it,  whether  or  they  run  an  old  line  or  not. 

Barrillon  found  a  line  nearly  corresponding  with  the  line  B.  C,  about 
forty-seven  years  old.  The  line  B.  E.  is  not  a  straight  line,  but  makes  a 
slight  angle  at  K. 

The  jury  were  instructed,  that  if  they  thought  the  pine  corner  to  be 
established  by  the  evidence,  the  line  D.  E.  must  stop  at  C,  where  the 
])ine  originally  stood.  But  if  they  thought  that  corner  not  established, 
they  miglit  extend  the  line  to  L. ;  that  is,  to  the  land  called  for  by  the 
grant  to  John  Wolfe,  and  according  to  the  opinion  of  Barrillon  and 
Mclnnis.  The  jury  found  for  the  plaintiff,  the  laud  in  dispute;  and  the 
defendant  appeals : 

1st.  Because  the  plaintiff's  lines  should  have  been  closed  according  to  the 
corners  and  niarkcd  trees  called  for  on  his  phit  ;  all  of  which  were  either  ibuiid, 
or  accounted  for. 

2d.  liccause  it  was  not  proved,  that  any  such  boundary,  as  tlie  one  adopted 
by  the  jury,  existed  in  1775,  when  the  plat  of  plaintiff  was  located. 

3d.  Jiecause  the  finding  of  tlie  jury  was  contrary  to  tlie  law  and  evidence,  and 
the  well  established  rules  of  locatiuii. 

Cnri'n,  per  Butler,  J.  We  are  well  satisfied,  that  the  location 
adopted  l)y  the  jury  in  this  case,  should  not  be  sustained.  It  is  not  only 
against  the  evidence,  but  it  violates  the  obvious  principles  by  which  the 
plaintiff's  grant  should  have  been  located.  The  three  corners,  B.  A.  and 
D.,  are  formed  as  called  for  in  the  i»lat  ;  the  fourth  corner  of  the  tract, 
though  not  called  for  in  the  grant,  is  represented  on  the  ])lat,  to  be  on  an 
island,  lying  tct-the  left,  and  in  the  neighljorhood  of  Bull  Swamp.  The 
original  surveyors  certainly  knew  where  the  island  lay,  and  intended  the 


*78]  YOUNG    VS.    KENNEDY.  399 

lines  running  from  1>.  and  D.  to  intersect  on  it ;  and  the  course  of  both 
these  lines  would  go  to  an  island.  On  the  line  from  D.,  a  station  is  fouiid 
at  H.,  and  the  distance  *called  for  would  stop  at  C,  on  an  island  r-^.^^n 
without  crossing  the  creek.  It  could  never  have  been  supposed  '- 
by  the  original  surveyors,  that  the  lines  from  B.  and  D.  should  cross  Bull 
Swamp,  before  they  intersected  ;  otherwise  they  would  have  represented 
the  creek  as  they  did  the  island.  To  get  to  K  ,  the  creek  is  crossed 
twice,  and  the  course  from  B.  widely  deviated  from,  and  the  distance 
from  D.  greatly  extended  ;  not  only  perverting  the  shape  of  the  original 
plat,  but  making  a  corner  where  there  was  no  island  to  be  found  ;  for  it 
was  not  pretended  that  any  island  was  found  to  the  right  of  Bull  Swamp. 
It  appears  to  me  clear,  that  the  fourth  corner  must  be  located  on  an 
island,  and  that  C.  is  on  the  very  island  represented  and  called  for,  as  no 
other  was  found  corresponding  with  it.  This  is  a  conclusion  drawn 
from  an  inspection  of  the  plats  and  grants,  and  is  abundantly  warranted 
by  the  positive,  and,  I  think,  satisfactory  evidence  of  the  witnesses,  par- 
ticularly that  of  Pearson,  (a)  In  questions  of  location,  juries  will  not  be 
allowed  by  the  Court,  to  commit  palpable  errors.  We  think  the  jury, 
in  this  case,  has  committed  such  an  error,  and,  therefore,  grant  the 
defendant's  motion  for  a  new  trial. 

Richardson,  O'Neall  and  Evans,  JJ.,  concurred. 

T.  W.  Glover,  for  the  motion.      Whilmore,  Solicitor,  contra. 


^Alexander  Young  vs.  John  A.  Kennedy.  [*S0 

1.  When  a  defendant,  in  an  action  against  him  as  administrator,  fails  to  i>lead 
^^p/rne  administravit,'^  but  rests  his  defence  upon  the  plea  of  ^^non  est  factum,'^ 
or  some  other  plea,  and  a  recovery  is  had  against  him  on  such  plea,  the  judg- 
ment thus  obtained  is  '  ^ prima  facie' ^  evidence  to  charge  the  administrator  in  an 
action  suggesting  a  ^' devasturit;^^  and  the  return  of  nulla  bona  on  the  execution, 
is  evidence  of  the  same  character. 

2.  Tlie  return  of  nulla  bona  is  not  conclusive,  and  the  defendant  is  not  precluded 
from  showing  tliat  he  had  no  assets  of  the  intestate's  estate  to  be  administered. 

Before  Butler,  J.,  at  Kershaw,  Fall  Term,  1841. 

This  was  an  action  of  debt,  suggesting  a  devastavit,  so  as  to  make 
the  defendant  liable  for  a  debt  which  had  l^een  recovered  against  him,  as 
the  administrator  of  his  brother,  Andrew  Kennedy.  Plea,  not  guilty, 
and  issue  joined.  In  the  action  against  defendant,  as  administrator,  on 
a  sealed  note  by  his  intestate,  he  pleaded  "  non  est  factum.''^  This  was 
the  only  plea.  The  jury  found  a  verdict  for  the  plaiutitf,  October  Term, 
1840.  Judgment  signed  31st  October,  1840,  nud  Ji.  fa  lodged  same 
day,  to  make  the  money  out  of  the  effects  of  intestate,  &c 

lleturn  by  the  sheriff,  nulla  bona.  The  plaintiff  closed,  contending 
that  he  had  made  a  j9?'imra  facie  showing,  that  defendant  had  had  in  his 
possession  assets  to  pay  the  debt,  and  had  wasted  them.     A  motion  was 

(a)  Supra,  47.     An. 


400        COLUMBIA,  DECEMBER,  1841.   VOL.  IT.       [*80 

made  for  nonsuit,  upon  the  ground  that  plaintiff  had  not  made  a  suffi- 
cient showing  to  recover  in  this  action  against  the  defendant.  The  Court 
overruled  the  motion,  and  the  plaintilf  took  his  verdict  for  the  amount  of 
his  debt,  &c. 

The  defendant  moved  to  set  aside  the  verdict,  and  renewed  his  motion  for  a 
nonsuit  in  the  Court  of  Appeals,  on  the  ground,  that  the  showing  of  the 
plaintitf  was  not  sufficient  to  entitle  him  to  recover  in  this  action  against  the 
defendant. 

Mr.  Smart,  for  tlie  motion.     1st  Sauud.  Note  8,  219  ;  Rice's  Rep.  219. 

Mr.  De  Saussure,  contra.  States  the  question,  whether  the  judgment  recovered, 
and  nulla  bona  returned,  will  charge  the  defendant.  1st  At.  292 ;  Bac.  Ab.  Tit. 
Ex'ors  and  adm'rs,  let.  M.      Givens  vs.  Porteous,  1  McC.  379. 

^Q,  -|  *  Curia,  pei'  Butler,  J.  The  precise  point  ruled  on  the  circuit, 
-'  and  that  upon  which  the  judgment  of  this  Court  is  now  asked,  may 
be  thus  stated :  When  a  defendant  in  an  action  against  him  as  adminis- 
trator, fails  to  plead  plene  achninistravit,  but  rests  the  defence  entirely 
on  some  plea  denying  the  liability  of  the  intestate,  such  as  payment,  or 
7io?i  est  factum,  &c.,  and  a  recovery  is  had  against  him  on  such  plea,  is 
not  a  judgment,  thus  recovered,  prima  facie  evidence  to  charge  the  ad- 
ministrator in  an  action  of  debt,  suggesting  a  devastavit  ?  and  if  so,  is 
not  the  return  of  nulla  bona,  on  the  execution  in  the  case,  evidence  of 
the  same  character,  to  show  that  the  assets  which  were  administered,  had 
been  wasted  ?  An  affirmative  decision  of  this  proposition,  does  not  de- 
prive the  defendant  of  an  opportunity  of  showing  that  he  liad  no  assets 
of  the  deceased  to  be  administered,  or  to  show  that  he  had  not  wasted 
them.  Such  a  decision  as  thai  might,  in  this  State,  operate  unjustly,  as 
it  might  be  in  the  power  of  the  administrator  to  show  that,  instead  of 
wasting  the  assets,  as  might  be  inferred  from  the  sheriff's  return,  they 
had  been  taken  away  from  him  subsequent  to  the  first  trial,  by  the  judg- 
ment of  a  competent  Court ;  or,  perhaps,  that  he  had  regularly  disposed  of 
them,  according  to  law,  to  superior  demands,  (a)  I  am  not,  therefore,  pre- 
pared to  go  so  far  as  to  say,  that  if  an  administrator  or  executor  omit  to 
plead  pley^e  administravit  in  the  first  action,  and  a  verdict  is  had  against 
him,  it  operates  as  a  conclusive  admission  of  assets  ;  or  that  nulla  bona 
should  be  held  as  conclusive  evidence  of  devastavit.  The  English  deci- 
sions would  seem  to  go  this  far.  In  the  case  o^  Ervinrfs  Executors  vs. 
Peters,  3  T.  R.  G85,  the  subject  was  fully  considered.  The  defendant  had 
been  sued  on  a  bond  executed  by  his  testator,  and  others,  twenty-four  years 
Ijcfore  suit  l)rought.  lie  put  in  a  plea  of  payment,  and  a  verdict  was 
had  against  him  on  such  plea;  ^  fi.  fa.  was  taken  out  on  the  judgment, 
commanding  tlie  sheriff  to  cause  the  debt  and  damages  to  be  levied  of 
tlie  goods  and  chattels  of  the  testator  in  the  hands  of  defendant,  if  he 
had  so  much  thereof  in  his  hands  to  be  administered,  and  if  he  had  not 
so  much,  &c.,  then  to  cause  tlie  said  damarjes,  {only)  to  be  levied  of  the 
*821  V^^'^V^^  goods  and  chattels  of  the  defendant  *himself.  Upon  this, 
-•  the  sheriff,  after  calling  to  his  aid  a  jury  to  try  the  question,  certi- 
fied that  no  goods  could  be  found,  eitiier  of  the  testator,  or  defendant,  in 
his  bailiwick,  (the  same  having  been  taken  away,)  to  satisfy  the  debt  or 
damages.  This  was  all  the  evidence  of  a  devastavit  that  was  offered  by 
(a)  See  1  Sp.  277.     An. 


*82]  YOUNG    l-S.    KENNEDY.  401 

pliiiiitiff.  The  Court  held  tliis  sufficient,  and,  indeed,  a  couchisive 
ii(Jniission  of  assets.  Lord  Kenyon  strujrjried  hard  to  free  himself  from 
the  restraints  of  autliority,  sayinj^  it  struck  him  as  extremely  hard  on  the 
(iefenihint,  but  as  hard  as  it  was,  he  must  submit  to  the  law,  as  it  had 
l)eeii  settled  by  the  current  of  authorities.  His  lordslup  further  remarked, 
'•  that  it  seemed  extraordinary,  that  the  judecment  in  the  first  action, 
should  not  be  a  judgment  de  bonis  jjropy-iis,  if  the  executor  be  liable,  at 
all  events."  Buller,  J.,  had  no  such  difficulties;  but  said  the  law  was 
both  well  settled,  and  agreeable  to  reason,  He  concludes  his  judgment 
in  the  following  terms:  "  Here,  the  simple  question  is,  whether  an  exe- 
cutor or  administrator,  who  has  no  eifects  in  his  hands  to  be  administered, 
and  will  not  take  advantage  of  that  defence  at  the  proper  time,  shall  be 
permitted  to  do  it  afterwards.  Now,  it  is  an  universal  principle  of  law, 
that  if  a  party  do  not  avail  himself  of  the  opportunity  of  pleading  matter 
in  bar  to  the  original  action,  he  cannot  afterwards  plead  it,  either  in 
another  action  founded  on  it,  or  in  a  scire  facias.  According  to  these 
views,  the  defendant  in  the  case  before  the  Court,  would  be  barred  by  the 
recovery  in  the  former  action,  from  setting  up  any  defence  in  this. 
Although,  in  form,  the  judgment  was  against  him  to  be  satisfied,  de  b'oiis 
tesfatoris,  yet,  in  effect,  it  wonld  fix  liis  absolute  liability.  I  think  in 
justice,  however,  he  should  not  be  placed  in  this  situation.  But  he  should 
l»e  rather  regarded  as  standing  in  the  position  of  a  defendant,  who  had 
pleaded  plene  adniinistraint,  with  a  finding  of  assets  in  his  hands.  In 
such  a  case,  a  judgment  would  be  only  good  for  the  amount  of  assets 
found,  although  it  would  be  a  falsification  of  the  plea  denying  any  assets. 
In  the  foregoing  decision,  Lord  Kenyon  refers  to  the  decision  of  Lord 
Mansfield  on  this  point,  in  the  case  of  Harrison  vs.  Beckles,  "There,  to 
an  action  of  assumpsit,  the  defendant  pleaded  non  assumpsit  and  plene 
admiuistravif..''^  It  was  insisted,  that  if  the  plaintiff  could  prove*  r;;:oq 
assets  administered  to  any  small  amount,  the  plaintiff  must  have  a  '- 
verdict  for  the  whole  of  his  demand.  But  Lord  Mansfield  said  the  law 
was  certainly  understood  to  be  so,  and  there  were  a  hundred  cases  so 
determined.  This  struck  him  as  wrong  and  absurd  ;  and  after  consulta- 
tion with  the  other  judges,  it  was  agreed  that  the  plaintiff  ought  not  to 
recover  ttf  the  executor,  more  than  the  assets  in  his  hands  The  jjlaintitf 
proved  two  notes,  which  amounted  to  i.'80,  and  took  verdict  on  the  non 
assumpsit  for  that  sura,  and  having  proved  £25  assets  unadministered, 
he  took  a  verdict  on  i\\Q  pleyie  administravit  for  that  sum,  and  judgment 
quando,  &c.,  for  the  residue." 

In  the  case  under  consideration,  I  think  it  was  competent  for  the 
defendant  to  have  limited  the  verdict  to  the  actual  amount  of  assets 
which  he  had  in  his  hands  to  be  administered.  It  would  be  unjust  to 
punish  a  defendant,  who,  as  administrator,  believed  no  debt  was  due, 
with  the  absolute  payment  of  the  debt;  because  he  failed  to  sustain  a 
plea  put  in,  in  good  faith,  such  as  payment,  k(i.,  denying  the  existence 
of  the  debt.  But  an  omission  to  plead  piene  odniiniMrnvit,  will,  in  all 
cases,  raise  the  presumption  that  the  defendant  has  assets  sufficient  to  pay 
the  debt;  and,  in  a  second  action,  suggesting  a  decastafit,  a  plaintiif 
should  not  be  required  to  prove  the  assets,  l)ut  the  onus  should  be 
thrown  on  the  defendant  to  relieve  himself  from  liabilitv,  by  either  show- 
VOL.  I— 2T 


402  COLUMBIA,    DECEMBER,    1841.      VOL.  II.  [*83 

ing  that  he  had  nothing  to  satisf}-  the  judgment,  or  the  extent  of  assets 
inhis  hands,  &c.  This  the  defendant  refused  to  do,  when  he  had  it  in 
his  power  to  have  made  a  satisfactory  development  of  his  administration. 
I  presume,  however,  as  well  from  the  ground  of  defence  taken  by  defend- 
ant, as  from  what  was  stated  in  argument,  that  he  ought  to  pay  the  debt, 
and  that  the  verdict  is  entirely  correct.  The  judgment  of  the  Court  was 
founded  in  a  most  favorable  interpretation  of  tlie  law;  and  the  defendant 
has  no  cause  to  complain.  I  would  wish  to  limit  the  judgment  to  the 
point  made,  to  wit :  that  tlie  evidence  to  charge  ])laintitf  was,  at  least, 
2)rima  facie.  The  plaintiff  might  have  contended,  under  English  de- 
cisions, that  it  was  conclusive.  Until,  however,  the  law  is  thus  settled 
^  -|  here,  I  shall  be  satisfied  with  the  decision  made  on  *the  circuit, 
-J  which  being  confirmed,  the  motion  of  defendant  is  refused. 

Richardson,  O'Xeall,  Evans,  Earle,  JJ.,  concurred. 

See  Caldwell,  Administrcitor  of  Charr  vs.  Miclieau,  Administrator  of  Bromc,  1  Sp. 
276,  holding  the  evidence  conclusive.     2  Hill,  450.     Rice,  323.     A?i. 


The  Camden  Orphan  Society  vs.  Joseph  Lockhart,  et  al. 

1.  The  statute  of  limitations,  will  run  against  the  title  to  lands,  claimed  by  a  cor- 
porate body,  such  as  the  Camden  Orphan  Society. 

2.  Wliere  a  party  enters  upon  land,  as  the  tenant  of  another,  he  cannot  dispute 
the  title  of  the  party,  under  whom  he  entered,  by  attorning  secretly  to  a 
stranger. 

Before  Butler,  J.,  at  Kershaw,  Fall  Terra,  1841,  who  reports  the  follow- 
ing statement  of  facts : 

This  was  an  action  of  trespass,  to  try  titles  to  a  tract  of  land,  con- 
taining five  hundred  acres,  lying  on  Deep  Fork  of  Black  river. 

It  appeared  from  papers  on  record,  in  the  office  of  the  Secretary  of 
State,  copies  of  wliicli  were  given  in  evidence,  that  the  land  in  dispute 
had  been  in  a  grant  of  forty-eight  thousand  acres,  to  Thomas  Lowndes, 
made  by  the  Lords  proprietors,  in  1721,  and  that  the  same  lands  had 
been  receded  by  the  grantee,  Thomas  Lowndes,  to  the  crown,  after  it 
assumed  the  government  of  the  Province  of  South  Carolina  In  1775, 
Edward  Lowndes,  had  the  laud  in  dis]iute,  with  several  other  tracts  of 
five  hundred  acres,  surveyed  for  him.  The  survey  was  made  by  one  John 
Belton,  D.  S.,  and  was  recorded  in  the  proper  office.  A  memorial  was 
al.so  recorded  in  the  same  office,  purporting  to  have  been  made  by  Edward 
Lowndes,  and  certified  I)y  the  same  John  Belton,  in  which  it  is  recited, 

*851  '''^'  ^'^^^®  '"'"'^  '""^  '^*''^"  granted  to  *E(lward  Lowndes,  with  a 
J  reserviition  of  quit  rent  to  the  crown.  No  grant  could  be  found 
in  the  land  .ifficcs,  as  appeared  by  a  certificate  of  the  deputv  Secretary  of 
Stale  and  the  deputy  Surveyor  General.  The  plaintiffs  made  the  usual 
ofUdavit.  that  no  sucli  grant  was  in  their  possession.  They  relied  upon 
the  above  statemejit  of  facts,  to  raise  the  i)resumption  of  a  grant,  and 
that  it  had  been  destroyed  or  lost,  k<i.  The  next  piece  of  evidence,  intro- 
duced by  the  plaint  ills,  was  a  record,  in  which  Royal  Buliard,  as  Esche.o- 


^85] 


CAMDEN  ORPHAN  SOCIETY  VS.  LOCKHART  ET  AL.         403 


tor  of  Kershaw  district,  asserts  and  declares,  that  Edward  Lowndes  died 
iu  1790,  in  England,  leaving  no  heirs  in  this  country,  who  could  hold  the 
land — and  that  tlie  same  escheated  to  the  State.  Verdict  of  the  jury : 
"We  find  the  within  lands  described  to  be  esclieated."  Tiie  verdict  was 
certified  by  the  presiding  Judge,  David  Johnson,  Nov.,  181G.  Upon 
these  proceedings  the  clerk  of  the  Court,  as  required  by  law,  advertised 
in  the  public  news[)aper,  that  unless  the  heirs  of  Edward  Lowndes  came 
forward  within  a  year,  to  estal)lish  their  right  to  said  lanil,  they  would  be 
declared  duly  escheated,  &c.  By  ah  Act  of  the  Legislature,  the  title  to 
the  escheated  lands  of  Kershaw  district  was  vested  in  tlie  Orphan  Society 
of  Camden,  to  the  value  of  $9,00U  ;  and  under  this  Act,  as  well  as  a  title 
from  Royal  Bullard,  Escheator,  dated  the  28th  of  October,  1823,  the 
plaintirts  claimed  the  lands  in  dispute.     Trespass  admitted. 

Ul»on  the  above  statements,  the  defendants  moved  for  a  nonsuit,  which 
I  overruled,  holding  that  there  was  sufficient  evidence,  to  show  that  the 
State  had  granted  the  lands  to  Thomas  Lowndes  ;  that  although  no 
grant  could  be  found  in  the  land  office,  I  thought  the  recorded  memorial 
certified  by  Belton  to  have  been  made  by  Lowndes,  was  evidence,  that 
the  grantee  was  to  pay  quit  rent  to  the  crown,  on  the  assumption  of  a 
grant ;  and  I  also  thought  that  the  presumption,  that  the  grant,  had  been 
lost  or  destroyed,  amid  the  confusion  of  a  civil  war,  and  the  removal  of 
the  records,  from  one  place  to  another,  might  well  arise. 

The  defendants  then  went  into  their  defence,  which  depended  some- 
what, on  the  evidence,  that  came  out  from  the  plaintiff's  witnesses,  (which 
will  be  noted  hereafter,)  and  upon  a  grant  to  Isham  Moore  and  David 
Reynolds  .*The  grant  was  dated  the  7th  May,  1786,  and  covered  r-^op 
the  locus.  L 

To  establish  possession  under  this  grant,  the  defendants  relied  on  the 
following  evidence  : 

Daniel  Scarborough  said,  that  he  married  the  daughter  of  Joseph  Lockhart,  in 
1815  ;  that  Lockhart  was  then  in  the  cultivation  of  the  land ;  he  spoke  of  it  as  the 
LowndfS  kind,  but  always  said  he  held  it,  as  the  tenant  and  agent  of  Moore  ;  never 
heard  him  say  otherwise,  in  his  lifetime  ;  he  died  in  1829,  and  his  son,  Joseph 
Lockliart,  one  of  the  defendants,  then  took  possession  of  the  land,  and  held  it  as 
his  father  had  done.  The  witness  said,  the  first  time  he  heard  old  Joseph  Lock- 
hart, speaking  of  his  holding  the  land  for  Moore,  was  about  a  year  or  two  after  his 
marriage.     He  then  spoke  of  himself,  as  Moore's  tenant  generally. 

Angus  MoCaskiil,  said  he  knew  Joseph  Lockhart,  iSen.,  in  1^15  ;  he  was  then 
living  on  tliis  land,  and  died  tliere.  During  Lockhart's  lifetime,  from  1815,  wit- 
ness often  heard  him  say,  lie  held  the  laud  for  Moore,  and  was  p\it  there  to  take 
care  of  the  land,  and  to  keep  off  trespassers.  The  witness  says  lie  knows  of  Lock- 
hart having  bargained  a  part  of  tlie  land  for  Moore,  in  182t),  to  one  Porter;  and 
that  Porter  is  now  in  the  occupancy  of  tlie  hand  so  bargained,  and  has  been,  ever 
since  his  purchase  in  Ib'H). 

The  defendants  closed,  by  proving  that  the  defendants,  in  the  record,  were  tlie 
representatives  of  ]\Ioore  ;  their  names  having  been  substituted  or  added  by  order 
of  Court,  since  the  commencement  of  this  suit. 

By  way  of  reply,  the  plaintiffs  relied  on  the  following  evidence  : 

Obligation  by  Joseph  Lockhart,  dated  April,  lb21,  to  pay  810  rent  to  the  Cam- 
den Orphan  Sociefy.  The  following  entry  appeared  on  the  record  of  the  Court  of 
Common  Pleads,  for  November,  1824:  ^- Riyal  Bullard,  Escheator  of  Kershaw  dis- 
trict vs.  Jos.  Lockhart ;  trespass  to  tiy  titles.     Nonsuit." 

Record  of  liicluird  Moore  vs.  the  Esrhator  of  Kcrsham.  This  was  a  suggestion  on 
the  part  of  Moore,  setting  forth,  that  the  lands  described  were  not  subject  to 
escheat,  as  had  been  declared  in  previous  proceedings,  but  they  belonged  to  bim- 


404       CILUMBIA,  DECEMBER,  1841.   YOL.  11.       [*86 

^„„,  self.  This  proceeding  was  let  fall  in  some  *way.  William  McWillie  was 
■'  sworn  to  make  some  explanations,  relative  to  the  above  record.  He  stated, 
that  he  was  counsel  for  Lockhart.  in  the  suit  of  the  Orphan  Society  against  Louk- 
hart,  and  procured  a  nonsuit  on  the  production  of  the  obligation,  to  pay  rent  before 
mentioned,  and  that  the  last  case  went  off  the  docket  because  Moore  supposed  his 
title  no  longer  in  danger,  and  that  it  was  not,  therefore,  necessary  for  him  to  go 
on  with  the  suggestion. 

The  whole  question  in  the  ease,  as  it  went  to  the  jury,  was,  whether 
the  defenilauts,  had  a  good  title  to  the  land,  by  the  statute  of  limitations  ; 
which  depended  altogether  on  the  character  of  Lockhart's  possession  I 
said  to  the  jury,  that  if  Lockhart  had  held  for  Moore,  from  1815  to  1821, 
it  gave  Moore  good  title  under  the  statute  ;  and  that  in  1821,  when  it 
was  said  Lockhart  acknowledged  himself  the  tenant  of  the  plaintiffs,  he 
could  not  attorn  to  a  stranger,  without  divesting  himself  of  the  relation 
of  tenant  of  Moore,  and  giving  Moore  notice  of  the  new  relation  he  had 
assumed  to  plaintiffs.  That  if  Lockhart  had  done  so,  he  might  then  be 
regarded  as  standing  in  an  adverse  position  to  Moore,  and  might,  by  his 
subsequent  possession,  enable  the  plaintiffs  to  accjuire  a  title  under  the 
statute  of  limitations,  &c.  The  fact,  that  Lockhart  bargained  any  part 
of  the  land  for  Moore,  in  1826,  would  seem  to  show,  that  at  that  date, 
he  regarded  himself  as  the  agent  of  Moore.  The  jury  returned  a  verdict 
for  defendant. 

The  plaintifts'  appealed  and  moved,  for  a  new  trial : 

1.  Because,  by  the  written  acknowledgment  of  Joseph  Lockhart,  Sen.,  in 
1821,  as  tenant  of  the  plaintiffs,  and  his  obtaining  a  nonsuit  against  the  plain- 
tiffs, in  their  suit  against  him,  in  1824,  by  setting  up,  and  by  virtue  of  the  said 
instrument,  the  said  Lockhart  had  openly  thrown  off  his  character  as  agent  or 
tenant  of  Moore,  if  ever  he  was  siicli  tenant. 

2.  Because  the  suggestion  filed  by  Richard  Moore,  on  the  17th  of  April. 
1824,  was  an  admission  that  the  said  Lockhart  was  the  tenant  of  plaintiffs. 

o.  Because  Richard  Moore,  having  failed  to  file  his  traverse  of  said  escheat, 
»gg-|  within  five  years  alter  the  verdict  of  *escheat,  he  is  barred  from  now 
'  claiming,  and  the  land  then  vested  in  the  plaintiffs. 

4.  Because  Moore,  having  failed  to  tra\erse  the  escheat,  within  the  time 
limited,  tlie  attornment  of  Lockhart  in  1>21,  made  his  possession,  the  posses- 
sion of  tlie  plaintiffs. 

5.  Because  from  the  legal  proceedings  had,  the  question  of  tenancy  was  one 
of  law,  not  fact,  and  his  Honor  should  have  so  charged  the  jury,  and  not  left  it 
to  them  to  decide. 

J.  J/,  pe  Saussure,  for  the  motion,  Reads  the  acknowledgment  of  tenancy,  1S21. 
Nonsuit  in  1S24,  by  the  production  of  the  written  memorandum  of  tenancy.  This 
is  inconsistent  with  this  verdict. 

His  defence,  on  the  ground  of  this  tenancy,  was  a  renunciation  of  his  defence 
under  Mdore,  .O  Stat,  at  Large,  4S,  Escheats  3. 

Within  five  years,  party  comes  in  and  compensation. 

Wm.  F.  Dp.  Smisnurp,  contra.  Was  Jloore  a  party  to  the  inqiusition  of  escheat  ? 
It  merely  applies  to  the  heirs  of  the  parties  seized. 

2  N.  k  Mo(;.  i570,  note  :573.     Title  acquired  by  tenant,  cannot  be  set  up. 

Harjier  70,  l^cr.  vs.  Dmnis.     Law  Journal,  114,  125. 

QiiM-n,'.  How  can  J-ockhart's  possession  be  adverse  after  the  recognition  of  the 
plaintifTs  title,  by  becoming  their  tenant. 

Curia,  per  Butler.  J.  I  shall  regard  this  case  here,  as  it  was 
regarded  on  the  Circuit.     As  a  contest  between  the  plaintiff  and  the 


*88]        CAMDEN  ORPHAN  SOCIETY  r.s.  LOCKIIAliT  ET  AL.         405 

lioirs  of  Moore.  The  grant  under  wliich  the  defendants  claim,  can  avail 
iliera  notliiiip:,  except  as  color  of  title,  to  indicate  the  extent  of  their  pos- 
session. For  it  could  have  availed  them  nothiiij!;,  during  the  lifetime  of 
Lowndes,  as  tiie  land  was,  at  his  death,  in  the  actual  jiossession  of  no 
i>ne;  and  after  his  death,  while  the  title  was  in  the  State  by  esclieat,  it 
was  not  the  subject  of  grant.  At  Lowndes's  death,  the  title  being  in  the 
State,  as  was  established  by  the  proceedings  is  escheat ;  the  Statute  of 
Limitatioiis(a)  could  not  run  against  the  State,  in  favor  of  Moore  or 
*any  one  else.  It  may  be  assumed,  as  it  is  stated  in  the  foregoing  r^on 
])roccedings,  that  Edward  Lowndes  died  in  1790.  At  that  time,  ^ 
then,  the  right  to  the  laud,  reverted  to  and  was  vested  in  the  Slate,  and 
was  subject  to  be  sold  under  the  Act  of  1787,(6)  or  to  be  disposed  of, 
l)y  any  specific  legislative  enactment.  By  an  Act  of  Assembly,  passed  in 
1779, ((')  the  escheated  lands  in  Kershaw  district,  to  the  amount  in  value  of 
89000,  were  vested  in  the  Camden  Orphan  Society,  which,  as  a  corporate 
body,  had  power  to  sue  for  these  lauds,  as  fully  as  any  natural  person 
would  have  had,  under  a  general  grant.  Tlie  jilaintiffs  having  thus 
acquired  this  right,  under  a  special  Act  of  legislation,  must  be  governed 
l)y  the  same  legal  principles,  that  would  operate  on  other  i)roprietors.-. 

These  general  propositions  are  fully  sustained  by  repeated  decisions  of 
our  own  State.  The  case  of  Wilkins  vs.  Ttui,  3  McC.  518,  establishes 
the  point,  that  the  Statute  of  Limitations  will  run  against  the  trustees  of 
an  Academy,  who  had  vested  in  them  the  title  of  escheated  lands  by  a 
special  Act  of  the  Legislature.  Not  from  the  time  of  inquisition  and 
office  found,  but  from  tlie  time  the  title  was  cast  upon  or  was  acquired 
by  the  trustees. 

Moore,  by  his  tenant,  Lockhart,  took  possession  of  the  laud  in  contro- 
versy in  1815,  and  held  it  adversely  till  1821  without  question.  Tiiis 
was  a  period  of  six  years  and  by  the  operation  of  the  statute,  he  acquired 
a  perfect  title  to  the  exclusion  of  all  the  world.  The  question  then  pre- 
sents itself;  has  he  been  divested  of  tliat  title  by  the  adverse  possession 
of  plaintiffs  after  that  time.  From  1821,  it  is  contended  that  the  plain- 
tiffs were  in  by  the  possession  of  Lockhart  as  their  tenant.  Whether 
Lockliart  continued  to  be  the  tenant  of  Moore,  or  had  become  and  was 
the  tenaiu  of  plaintiffs,  after  that  period  was  a  question  of  fact  that  was 
sul)mitted  to  the  jury  on  the  evidence.  It  does  appear,  that  in  1821, 
Lockhart  entered  into  an  obligation  to  pay  rent  to  plaintiffs.  Whether 
he  ever  jtaid  the  rent  for  that  year,  or  acknowledged  his  liability  to  pay 
it  afterwards,  did  not  appear.  I  think  the  evidence  well  warranted 
the  conclnsion,  that  after  that  year  he  continued  to  hold  for  Moore. 
For,  in  182(),  Lockliart  actually  bargained  in  the  '''name  of  Moore,  r*(\,( 
part  of  the  land  to  Porter,  who  is  now  in  possession,  under  ^ 
Moore's  title.  But  I  hold  it  out  of  the  question  that  the  plaintiffs  could 
have  availed  themselves  of  Lockhart's  possession  to  defeat  Moore's  title, 
uidess  it  could  have  been  shown,  that  Lockhart  had  assumed  an  open 
and  hostile  attitude  to  his  original  landlord.  Having  entered  under 
Moore,  he  could  not  dispute  his  title  by  attorning,  secretly  to  a  stranger. 
The  law  will  not  allow  the  rights  of  a  landlord  to  be  prejudiced  by  the 
treaciierous  conduct  of  his  tenant.     Before  a  tenant  can  claim  against  his 

('/)  Supra,  70.     An.  (i>)  5  Stat.  46.     An.  (r)  5  Stat.  3G3.     An. 


406  COLUMBIA,    DECEMBEK,    1841.      VOL.  IL  [*90 

landlord  he  must  give  him  open  notice  directly  or  by  some  decisive  act, 
that  the  tenant  is  holding  in  his  own  right,  or  in  that  part  of  another. 
No  such  notice  was  s:iven  to  Moore.  On  the  contrary,  he  had  every 
reason  to  believe  that^Lockhart  was  always  holding  in  his  right,  Moore 
was  not  even  made  a  party  to  any  of  the  proceedings  against  Lockhart, 
and  there  was  not  the  least  evidence  that  he  knew  of  Lockhart's  having 
entered  into  anv  obligation  to  pay  rent  to  plaintiffs.  Upon  this  point  we 
are  well  satisfied  with  the  finding  of  the  ju^\^  The  ground  was  taken, 
though  I  think  not  seriously  insisted  on,  that  after  the  land  was  sold, 
under  tne  proceedings  of  escheat,  the  title  of  all  parties  having  any  claim 
to  the  same,  was  thereliv  and  then,  extinguished  and  barred.  Upon  read- 
ing the  Act  of  1787,  it  will  be  found,  that  these  proceedings  were  con- 
clusive alone,  on  the  representatives  of  Lowndes,  and  could  not  affect 
strangers  to  them. 

Motion  refused. 

Richardson,  O'Neall,  Earle,  and  Evans,  JJ.,  concurred. 


*91]  *WiLLTs  Benson  vs.  M'Bee  &  Alexander. 

J.  Richardson  vs.  The  Same. 
J.  Hawkins  vs.  The  Same. 
E.  Hawkins  vs.  The  Same. 
S.  Turner         vs.  The  Same. 

Where  grain,  received  at  a  mill  as  toll,  was  mixed  up,  and  became  the  subject  of 
traffic,  between  the  defendants,  each  being  part  owner,  and  interested  in  the 
proceeds  of  the  sale.  It  was  held  that  they  were  partners,  in  that  particular 
business. 

Before  Butler,  J.,  at  Greenville,  Extra  Court,  August,  1841. 

This  was  an  action  of  assumpsit  for  grain  sold  and  delivered  to  the 
defendants,  as  partners.  Tlie  grain  (wheat)  was  delivered  to  Alexander 
alone  ;  luit  it  was  alleged  on  the  i)art  of  the  plaintiff,  that  it  was  delivered 
to  him  while  he  had  cluirge  of  McBee's  mill,  and  as  the  partner  of  McBee. 
The  whole  question  in  the  case  was,  ivhether  Alexander  bought  grain  on 
account  of  himself  and  McBee,  as  partners,  or  exclusively  on  his 
individual  account^  This  depended  very  much  on  the  course  of  dealing 
with  tlie  public,  and  the  fact,  whether  McBee  had  shared  in  the  profits  of 
wheat  bonglit  l)y,  and  delivered  tf),  Alexander.  It  appeared  by  articles 
of  agreement  entered  into  by  McBee  and  one  Michael,  dated  2(lth  June, 
IM'2'.),  that  the  latter  was  to  take  charge  of  McBee's  mill  on  Reedy  River, 
neur  (ireenville  Court  House,  and  was  to  have  one-third  of  the  tolls  as  a 
conipcMsalion  for  his  services.  The  agreement  contained  a  clause  to  the 
effect  that  .Miclnicl  was  at  lil)crty  to  manufacture  the  wheat,  arising  from 
the  lolls,  into  Hour,  and  to  sell  it  on  account  of  McBee  and  Michael ;  the 
former  to  have  two-thirds  of  the  nett  profits,  and  the  latter  one-third,  and 
Itoih  to  !»o  lial)le  for  l)ad  dcl»ts.  (See  the  agreement,  which  is  not  before 
me.)     Tills  agreement  continued  in  force  till  April,  1830,  when  Michael 


^91] 


BENSON    ET  AL.  VS.  m'bEE  &  ALEXANDER.  407 


(luit  tlie  mill,  alleging  that  he  could  make  nothing  by  it,  and  Alexander 
took  charge  of  it,  under  the  same  agreement,  with  a  memorandum 
endorsed  thereon,  to  this  effect :  that  the  said  agreement  was  mainly  to 
govern  the  parties.  Some  short  time  after,  Alexander  took  charge  of  the 
mill,  which  was  enlarged,  by  the  addition  of  another  mill-house.  He 
commenced  the  purchase  of  grain,  to  raise  and  sell  pork,  &c.,  &c.  For 
grain  thus  bought,  he  would  give  his  individual  *note,  at  some  p^^ 
times,  and  at  others  would  settle  for  it  by  giving  credit  to  customers  •- 
at  the  mill,  on  their  action  for  flour,  bran  and  pork  sold  to  them.  These 
accounts  against  such  persons  were  kept  in  books,  marked  the  books  of 
McBee  iS:  Alexander.  These  accounts,  thus  kept  against  the  dealers  at 
the  mill,  were  readjusted  and  settled  in  a  book,  purporting  to  be  one 
between  McBee  &  Alexander  themselves.  The  books  were  kept  with 
some  complication  and  confusion,  and  will  again,  as  they  were  on  the 
trial,  be  referred  to  l)y  counsel.  Tliey  were  called  for,  under  notice  by 
the  plaintilf,  and  were  relied  on  to  show  that  McHee  had  received,  in  his 
settlement  with  Alexander,  a  share  of  the  profits  of  pork,  beef  and  flour, 
sold  by  Alexander,  and  that  he  had,  thereby,  recognized  Alexander  as 
his  general  partner  in  all  the  transactions  of  the  mill.  These  books,  and 
the  following  evidence,  will  put  the  Court  in  possession  of  the  case. 

Edmund  Waddill  said  lie  had  known  the  mill  for  many  years — Alexander  kept 
it  for  fourteen  years — ijuit  it  at  his  failure,  which  occurred  siiddenly,  some  short 
time  before  the  commencement  of  this  action — has  seen  the  parties  settle  frequently 
— McBee  required  an  annual  settlement  of  their  accounts,  and  on  such  settlement, 
he  would  take  two-thirds,  and  give  Alexander  one-third  of  the  profits — the  mill 
ground  a  good  deal  of  wheat,  and  had  many  hired  hands  employed  about  it.  A. 
co-partnership  wagon  and  team  were  attached  to  the  mill — it  did  the  hauling  for 
the  mill.  Besides  the  wheat  arising  from  tolls,  a  great  deal  of  other  wheat  was 
bought  at  the  mill,  which,  as  well  as  the  toll  wheat,  was  ground  up  into  flour. 
This  witness  said  that  this  was  what  was  called  a  merchant  mill,  and  that  he 
thought  it  was  the  custom  of  such  a  mill  to  buy  grain  and  manufacture  it  into 
flour,  as  well  as  to  take  toll.  He  said  he  did  not  know  that  McBee  liad  ever  pur- 
chased grain,  or  had  sanctioned  the  contracts  of  Alexander  for  grain  purchased  by 
him. 

Peter  G.  Gerard  and  T.  Walker,  Esqrs.,  and  others,  said  they  had  paid  ofl" 
accounts  for  flour,  bran,  &c.,  which  were  presented  to  them  in  the  name  of  McBee 
&  Alexander.  (Gerard  said  he  had  paid  such  an  account  to  McBee  since  the  failure 
of  Alexander.  Walker  said  that  McBee  was  *an  attentive  man  to  business,  r^no 
and  lives  not  far  from  the  mill. 

Dr.  Rabe  said  he  wanted  to  buy  seed  wheat — forty  bushels — and  spoke  t  >  Alex- 
ander, saying  he  wanted  Benson's  wheat,  as  it  had  taken  the  prize.  Alexander 
consented  to  let  him  have  it.  Witness  called,  but  Alexander  said  that  wheat  was 
gone,  but  he  would  get  more  of  the  same  kind.  Witness  called  again,  and  got 
forty  bushels  of  wheat,  which  he  understood  to  be  Benson's  wheat.  He  gave  his 
note,  payable  to  McBee  &  Alexander — he  was  sued — and  he  paid  the  amount  of 
the  judgment  to  Luther  McBee,  son  of  defendant.  A  judgment  on  a  note  given 
by  Felix  (ireen  to  McHt>(>  &  Alexandiu*.  was  produced  in  evidence. 

Samuel  fr.  McClanahan  once  saw  McBee  holding  his  horse,  and  in  conversation 
with  Alexander,  near  the  house  of  the  latter.  As  witness  approached,  heard 
McBee  say,  I  want  you  to  borrow  or  get  money  for  me,  you  can  do  it  as  well  as  I 
can.  McHee  wa.s  then  going  to  his  factory,  ancl  after  making  the  remark,  rode  off. 
He  was  about  fifteen  feet  off,  when  Alexander  said  to  y>itness,  can  you  let  us  have 
some  money  ?  or  can  you  lend  me  some  money  ?  and  said  you  can  get  my  note,  or 
McBee  will  give  his  note,  or  we  will  give  our  note  ;  it  is  just  as  you  please.  Ulti- 
mately, witness  let  Alexander  have  $2150.  and  took  his  individual  note  for  it. 
That  note  has  been  frequently  renewed.     Once  jjaid  an  account  at  mill  for  wheat, 


408  COLUMBIA,    DECEMBER,    1841.      VOL.  IL  [*93 

made  out  in  the  name  of  McBce  &  Aloxandor— at  another  time  he  got  some  seed 
wheat,  which  was  in  hogshead,  and  whic-li  Alexander  said  was  Benson's  wheat. 
Tlie  price  of  the  wheat,  twenty  bushels,  was  credited  on  Al«^xander's  note.  Eabe's 
servant  was  at  mill,  and  got  wheat  at  the  same  time,  and  of  the  same  kind  he  did. 
Before  the  conversation  above  alluded  to,  which  was  four  years  ago,  he  had  fre- 
quently let  Alexander  have  money.     Witness  sold  Alexander  railroad  stock. 

John  Hawkins  says  he  was  in  the  habit  of  carrying  his  wheat  to  the  mill,  and 
selling  it  to  Alexander — Alexander  owed  him,  at  one  time,  as  much  as  $2(XiO — he 
woulcf  frequently  have  settlements  with  Alexander,  when  he  (the  witness)  would 
^^.  produce  his  book,  kept  hy  his  son,  (the  *witness  being  illiterate,)  and  Alex- 
^  J  ander  would  produce  his  book — the  entries  corresponded,  and  settlements 
were  made  by  these  books— that  book  looked  like  that  produced  in  Court.  (It 
was  alleged  by  plaintiff  that  this  was  a  different  book  from  that  in  Court,  and 
should  be  jjroduced  ;  but  it  was  denied  that  there  was  any  such  separate  book  as 
that  described  by  witness.) 

Samuel  Williams  said  that  he  drove  wagon  for  his  father,  and  hauled  wheat 
from  Benson's  to  mill. 

Enos  Williams  said  he  was  the  regular  wagoner  of  the  partnership  wagon  and 
team — he  was  employed  by  Alexander,  while  he  had  charge  of  the  mill,  and  since 
his  failures  he  has  been  employed  by  McBee  For  four  years  witness  was  em- 
ployed by  Alexander,  during  that  time  he  hauled  a  good  deal  of  flour  to  Augusta 
— would  sell  it  and  pay  over  the  proceeds  of  sale  to  Alexander.  Sometimes  he 
would  haul  other  articles  for  different  persons — once  went  to  Tennessee  with  yarn, 
and  other  goods.  Tlie  barrels  of  flour,  which  he  hauled  to  Augusta,  were  marked 
"^  Retdif  River  Mill,  Greeiirille" — this,  the  only  mark.  When  he  sold  flour,  he 
did  so  in  the  name  of  Alexander — once  stored  some  in  his  name — never  had  con- 
versation with  McBce  on  the  subject — got  all  his  instructions  from  Alexander. 
Alexander  charged  McBee  with  two-thirds  of  the  expense  of  trip — would  charge  him 
with  two-thirds  of  corn,  purchased  with  Alexander's  money,  or  furnished  by  Alex- 
amlcr. 

The  following  receipts  and  due  bills  were  offered  to  establish  the  bill  of  particu- 
lars : 

Receipt  to  Benson  of  one  hundred  and  forty-three  bushels  of  grain,  delivered  at 
mill,  in  March,  1840,  signed  and  certified  by  Alexander  to  be  true. 

Due  bill.     Due  Willis  Benson,  on  settlement,  $200,  dated  in  1837. 

(signed)  Alexander. 

AnotJier  due  bill  for  $38,  signed  by  same,  dated  2d  February,  1839. 

William  Choice  was  the  attorney  of  McHce  &  Alexander — collected  a  note  given 
by  Liniestone  Springs  Company,  payable  to  McBee  &  Alexander — has  paid  accounts 
for  pork,  wheat,  ^c,  made  out  in  the  name  of  McBee  &  Alexander.  Before 
iir)r-i  Alexander's  failure,  which  was  suddeidy,  *and  while  McBee  was  in  Charles- 
ton, his  credit  was  very  good — the  general  impression  was,  that  he  was 
making  money,  and  in  thriving  circumstances.  Alexander  gave  $1500  for  shares 
in  the  railroad  company  ;  they  were  sold  at  $140.  He  lost,  while  he  had  the  mill, 
a  woman  and  a  b(»y.  The  witness  said  ho  had  a  note  in  his  hand,  payable  to 
Hawkins,  by  Alexander,  wheii  it  was  presented  for  payment,  Alexander  said  when 
•MiHi-e  returned  he  would  put  his  name  to  the  note,  which  McBee,  however,  refused 
to  do. 

.Jeremiah  Cleveland  sold  corn  to  Alexander,  who  said  part  was  for  himself  and 
jiart  for  Mcbee.  Alexander  gave  his  own  note,  and  paid  it.  This  corn  was  not 
Hawkins'. 

.lobn  Hawkins  says  the  coni  sold  l)y  Cleveland  was  delivered  to  McBee's  driver, 
and  ill  McMee's  own  wagon. 

W.  HIasingame,  the  clerk,  was  (ince  present  when  Alexander  lent  Col.  Ware 
$12<io.  Cli'veland  got  tlie  imtr  that  was  given  for  the  money,  and  recovered 
jiidgiiient  ou  it. 

.lellerson  Choice.  McH.m-  a|.pli..d  to  him  to  get  $500  of  money  which  he  had, 
belonging  to  William  CJioice.  McHee  said  at  the  time,  that  he  would  have  no 
orc.'uiion  to  borrow,  if  lie  coubl  got  the  $SUO  coming  to  him  out  of  the  $1:^00  Ware 
note. 


^95] 


BENSON    ET  AL.  VS.  m'bEE  &  ALEXANDER.  409 


Defence. 

Peter  Canble  says  he  always  understood  that  Alexander  kept  mill  for  one-third 
of  the  toll  grain,  and  that  McBee  was  no  further  connected  with  Alexander  than 
in  the  tolls.  Witness,  a  blacksmith,  did  work  for  the  mill,  and  charjred  tlu;  work 
to  McBce.  Witness  has  sold,  wheat  to  Alexander,  and  took  his  individual  note. 
Both  witness  and  McBee  bought  pork  of,  and  sold  hogs  to  Alexander.  Witness 
always  looked  to  Alexander  for  pay,  when  he  sold  wheat  to  him. 

Alexander  has  sustained  the  following  losses  :  by  death  of  boy,  worth  .$1200  ;  by 
death  of  girl,  worth  $800.  lie  (Alexander)  had  in  his  employment  a  man  named 
Charles,  who  kejit  the  keys.  Charles'  character  was  bad — he  was  a  thief.  Heard 
Alexander,  in  a  bragging  way,  say  ho  was  making  money  at  the  mill — Michael 
left  it,  because  he  said  he  was  sinking  money. 

Bc^njamin  Dunham  is  the  owner  of  a  mill  in  Anderson.  When  he  em-  pifqe 
ployed  his  miller,  who  was  from  North  Carolina,  he  took  him  on  the  same  '■ 
terms  that  McIJee  employed  his  miller — had  heard  of  the  agreement,  and  sent  for 
it  to  look  at,  and  afterwards  drew  up  an  agreement  of  the  same  purport — understood 
before  that  Mul?ee's  miller  was  getting  one-third  of  the  tolls.  It  is  not  generally 
uiuh'rstooil  that  a  miller  of  a  merchant's  mill  has  a  right  to  purchase  grain  and 
sell  Hour  manufactured  from  it.  The  owner  of  a  mill  may,  and  sometimes  does, 
purcliase  wheat  to  l)e  ground  up  into  Hour  for  sale. 

F.  U.  Macleod  was  in  the  habit  of  giving  Alexander  money  to  buy  wheat  for 
him,  with  instructions  to  liave  it  ground  up  into  Hour — knows  that  Benson  sent 
wheat  to  mill  since  Alexander's  failure.  Witness  got  some  from  Alexander,  and 
saw  Mr.  Perry  get  some  of  the  same. 

Benjamin  F.  Ilorton  has  given  Alexander  money  to  Imy  wheat  for  him — gener- 
ally would  get  about  thirty  bushels  a  year,  lie  worked  for  McBee,  and  would  pay 
his  mill  account  by  the  account  whicli  he  held  against  McBee. 

John  M.  Roberts  is  one  of  the  trustees  of  Alexander's  creditors.  Benson  filed 
his  demand,  but  has,  as  yet,  received  no  part  of  it.  Benson  told  witness  to  keep 
the  money,  when  witness  proposed  to  pay  it  over  to  him.  He  has  paid  several 
creditors  thirty-three  cents  in  the  dollar. 

Richard  Wnrd,  the  overseer  of  ]McBee,  knew  that  Alexander  cut  hay  in  MoBee's 
meadow — all  the  hay  he  has  ever  had  at  mill,  he  thinks,  came  from  the  meadow. 

Hardin  Roberts  keeps  Mcl?ec's  saw  mill,  and  makes  out  accounts  in  the  name 
of  McHee  &  Roberts.  Witness  gets  one  third  of  the  proceeds  of  plank  i^old,  and 
McBee  keeps  the  mill  in  repair. 

Wm.  Jacobs  says  his  account  was  in  note,  given  bv  Alexander,  for  money  lent, 
corn  sold  to  feed  horses,  &c.  Al(>xander  told  him  that  he  had  let  McBee  have 
$3000  in  gold  and  silver,  as  paper  money  would  not  answer,  the  exchange  would 
be  lost  by  such  way,  &c. 

Samuel  Bigham  knows  that  McBee  paid  for  machinary  at  the  North — some  paid 
for  six  years  ago,  and  some  two  or  three  years  ago — paid  for  some  in  gold,  three 
years  ago.  Witness  was  a  partner  of  McBee  in  a  cotton  factory,  ■^and  gave  p.. „^ 
notes  in  the  name  of  McBee,  Allen  &  Co.  McBee  has  a  gold  mine  in  North  ^  "- ' 
Carolina. 

EvuiExcE  IN  Reply. 

.John  Richardson  says  ho  hehl  notes  against  Alexander  ;  on  one  occasion  ap- 
plied for  money  ;  Alexander  paid  him  some  in  gold,  and  upon  witness  remarking 
that  it  was  pretty  money,  Alexander  said  yes,  he  did  not  let  it  always  go  out  ; 
that  he  had  up  stairs  a  peck  of  suidi  money.  The  witness  had  delivered  at  mill, 
wheat  and  barrels,  and  took  Alexander's  individual  note,  thinking  it  abundantly 
good,  though  he  thought  that  McBee  was  in  copartnership  in  all  thV  mill  business. 

Various  accounts  were  produced,  in  which  money  had  been  paid  to  Alexander, 
on  accounts  due  Alexander  &  McBee. 

The  case  was  submitted  to  the  jury,  under  instructions  on  the  p:eneral 
priMci|)les  of  the  law  api)lical)Ie  to  copartnerships.  I  held  that,  under 
the  articles  of  ajrrecmcnt,  McUee  was  a  partner  in  the  mnnufacturo  and 
sale  of  flour,  arising  from  toll-wheat ;  that  he  had  permitted  himself  to 


410  COLUMBIA,    DECEMBER,    1841.      VOL.  IL  [*97 

be  held  out  as  a  partner,  to  that  extent  at  least,  by  the  manner  of  dealing 
with  the  public.  Accounts  were  made,  and  suits  brought  in  the  name  of 
McBee  k  Alexander.  I  further  said,  that  strangers  to  the  subsisting 
contract,  between  McBee  &  Alexander,  might  hold  McBee  liable,  as  a 
partner,  for  grain  delivered  at  the  mill,  when  there  was  nothing  to  show 
that  Alexander  received  and  bought  the  grain  on  his  individual  account. 
In  many  instances,  persons  who  had  given  their  notes  to  McBee  & 
Alexander,  or  who  had  accounts  standing  against  them  for  flour,  bran, 
&c.,  paid  them  oft'  by  the  sale  and  delivery  of  grain  at  the  mill.  From 
this  mode  of  dealing,  such  persons  might  well  regard  Alexander  as 
acting  within  the  scope  of  the  copartnership  between  himself  and  McBee, 
upon  the  ground  that  the  latter  had  made  him  his  agent  to  make  such 
contracts,  and  to  transact  the  general  business  about  the  mill,  on  the  faith 
of  his  name.  This  course  of  dealing  was  calculated  to  deceive  the  pul)lie. 
Notwithstanding  it  may  have  been  the  design  of  the  parties  to  limit  their 
*QQn  partnership  to  the  tolls,  still  it  was  competent  for  persons  *to  con- 

-'  tract  with  Alexander,  as  to  all  matters  not  strictly  embraced  in  the 
business  of  the  farm.  They  could  make  him  their  agent  to  buy  and  sell 
wheat  for  them,  or  to  do  anything  else  with  which  they  believed  McBee 
was  not  interested.  The  rights  of  such  persons  could  not,  however,  be 
destroyed  by  such  a  mode  of  trading,  if  they  could  show  that  McBee,  in 
fact,  shared  the  profits  of  such  transactions.  And  it  seemed  to  me,  that 
was  the  point  of  view  in  which  this  case  should  be  regarded  ;  for  one  may 
sultject  himself  to  the  liability  of  a  partner,  either  by  permitting  another 
to  use  his  name,  where,  in  fact,  he  was  not  interested,  or  where  his  name 
is  not  used,  by  sharing  the  profits  of  the  concern,  under  an  agreement, 
expressly,  or  by  implication,  existing  between  the  parties.  This  presented 
a  question  of  fact:  Did  the  plaintiff  deal  with  Alexander  in  selling  him 
his  wheat,  as  the  partner  of  McBee,  from  an  honest  belief  that  McBee, 
had  ]iermitted  Alexander  to  use  his  name  ?  or,  if  not,  had  he  shown  that 
McBee  had  shared  in  the  profits  of  wheat  purchased  by  Alexander?  I 
was  strongly  inclined  to  believe  that  Benson  had  sold  the  wheat  to  Alex- 
ander, on  iiis  own  individual  responsibility.  By  his  own  showing  he  had 
taken  notes  signed  alone  I)y  Alexander,  and  had  filed  his  demand  against 
Alexander,  with  a  view  to  receive  his  share  of  the  proceeds  of  his  pro- 
]»erty.  If  this  was  so,  I  stated  to  the  jury,  that  this  case  would  be 
reduced  to  this  simple  point:  Had  McBee  shared  in  the  profits  of 
wliciit  Itought,  and  flower  sold,  manufactured  from  such  wheat?  There 
was  no  positive  evidence  on  the  point;  it  was  a  subject  of  inference,  from 
the  course  of  dealing  in  other  matters.  For  instance,  it  was  said,  and  I 
suppose  estal)lislied  by  evidence,  that  McBee  had  participated  in  the 
sale  of  l>eeves  and  pork,  and  some  other  articles,  for  which  there  was  no 
express  stipulation  in  the  original  agreement.  The  agreement  limits  the 
l)iisiii.-ss  r)f  ili{.  roiiccrn  to  the  flour  manufactured  from  toll-corn.  But 
the  ground  tjikcn  was,  that  in  the  progress  of  their  business,  the  parties 
had  enlarged  the  sphere  of  their  partnership  operations,  and  had  extended 
them  to  ih(!  purchase  and  side  of  uU  articles  bought  at,  or  arising  from 
the  mill.  The  books  were  mainly  relied  on  to  establish  this.  Whether 
this  was  the  case,  or  not,  was  a  question  of  fact,  which  I  left  to  the  jury. 
*cj9  I       *Tliejury  found  f.u-  the  plaintilf,  $143,  which  was  as  much  as  I 

-J   think  he  proved  of  his  demand. 


^99] 


BENSO.V    ET  AL.  r.9.  m'bEE  &  ALEXANDER.  411 


GROUNDS    OF    APPEAL. 

1.  Because  his  Honor,  Judge  Butler,  instructed  the  jury  that,  by  the  articles 
of  agreement,  the  defendants  were  partners. 

2.  Because  his  Honor  instructed  the  jury,  that  if  McBee  received  the  profits 
of  beef,  pork,  or  other  articles,  sold  by  Alexander,  they  might  piesunie  he  was 
a  partner  in  the  purchase  and  sale  of  j^n-ain. 

3.  Because  there  was  no  evidence  that  McBee  participated  in  the  profits  of 
any  grain,  or  other  commodity,  purchased  and  sold  by  Alexander,  and  the 
verdict  is  unsupported  by  evidence. 

[The«e  several  actions  were  tried  before  Evans,  J.,  at  Greenville,  Fall  Term, 
1841,  and  one  depending  upon  the  same  state  of  facts,  before  Butler,  J.,  at  the 
same  place,  August  Term,  1S41. 

In  order  that  the  opinion  of  the  Ap]>eal  Court  may  be  more  fully  understood, 
the  reports  of  their  Honors,  on  the  trials  below,  are  given  entire.] 

Before  Evans,  J. 

These  actions  were  all  founded  on  contracts  made  with  Alexander  for 
the  sale  of  grain,  as  wheat,  corn,  oats  and  fodder.  In  all  of  them,  the 
main  question  was,  whether  there  was  a  co-partnership  between  the  de- 
fendants. Mcliee  owned,  at  Greenville,  a  large  mill,  employed  in  gene- 
ral, as  toll-mill.  For  many  years,  before  1830,  one  Michael  had  been  the 
miller.  The  agreement  between  him  and  McBee  was,  tliat  he  was  to 
attend  the  mill,  and  receive  for  his  services  one-third  of  the  toll,  and 
McBee  two-thirds.  Michael  to  sell  McBee's  toll,  and  if  he  chose,  he 
could  sell  his  own  share  along  with  McBce's;  and  if  he  did,  they  were  to 
share  the  loss.  Michael,  besides  the  one-third  of  the  toll,  was  to  have 
the  screenings.  In  1830,  .Alexander  succeeded  Michael,  and  by  an 
endorsement  on  the  agreement  of  ^Michael,  it  was  stipulated,  the  same 
contract,  until  another  should  be  made,  was  to  govern  between  Alexander 
and  McBee.  It  appeared  from  the  accounts  rendered,  and  the  books 
kept  in  the  name  of  McBee*  and  Alexander,  that  various  articles  r^i^r. 
were  charged  as  sold  to  customers,  such  as  pork,  pigs,  cattle,  '- 
flour,  wheat,  corn,  salt,  molasses  and  screenings;  and  that  several  cus- 
tomers were  credited  with  corn,  wheat,  rye  and  fodder,  in  the  mill  books. 
It  was  contended  by  the  defendants,  that  Alexander  had  mixed  up  his 
own  ])rivate  affairs  in  the  mill  accounts.  It  is  very  certain,  that  many  of 
the  articles  charged  to  customers  in  the  books,  such  as  the  screenings,  i)igs, 
salt,  <tc.,  were  Alexander's  ])rivate  ))roperty;  and  these  articles,  although 
charged  in  the  mill  books,  it  was  contended,  were  not  carried  into  the 
settlements  made  by  McBee  and  himself;  but  the  books  were  kept  in 
such  a  way,  it  was  not  by  any  means  certain  the  facts  were  so.  It  ap- 
peared from  the  evidence  of  Mr.  Benson,  that  in  1837,  he  sold  to  Alex- 
ander, wheat  to  the  amount  of  two  hundred  dollars,  and  when  he  and 
Alexander  settled  for  it  by  note,  Alexander  said  he  ought  to  pay  interest, 
as  he  had  sold  the  flour,  and  loaned  the  money  on  interest  to  one  Ware. 
In  relation  to  Ware's  del)t,  it  ap]>eared  that  about  $500  had  been  col- 
lected and  divided  between  McBee  and  Alexander,  in  the  ratio  by  which 
the  profits  of  the  mill  were  divided.  The  balance  of  the  debt  was  trans- 
ferred to  Mr.  Cleveland,  but  McBee  claimed  two-thirds  of  it.  It  also 
appeared,  that  in  1839,  Benson  sold  to  Alexander  and  delivered  at  the 
mill  one  hundred  and  forty-three  bushels  of  wheat.  A  part  of  this  wheat, 
it  was  said,  was  sold  to  Kabe,  for  seed,  and  charged  on  the  mill  books. 


412  COLUMBIA,    DECEMBER,    1841.       VOL.  II.  [*100 

A  note  was  afterwards  given  for  Rabe's  account,  inclurling  the  wheat, 
j.ayable  to  McBee  and  Alexander,  which  note  was  sued,  and  McBee, 
after  the  failure  of  Alexander,  received  the  money  ;  but  it  did  not  appear 
he  knew  for  wliat  the  note  was  g-iven. 

It  also  appeared  from  the  evidence  of  ]\Ir.  Turner,  that  when  Alexan- 
der applied  to  Hawkius  for  some  corn,  he  said  he  had  bought  wheat  of 
Brock  ;  that  the  mill  did  not  make  enough  to  supply  their  customers  ; 
some  of  them  were  out,  and  there  were  many  of  them  who  looked  to  the 
mill  for  their  bread,  as  he  (Hawkins)  did  to  his  cornerib  ;  it  would  take 
one  more  load  to  supply  them.  Hawkins,  who  was  examined  as  a  wit- 
ness in  the  other  cases,  stated  the  same.  Mr.  Hoke  proved  that  Alex- 
ander said  he  got  wheat  from  Turner,  at  $1  37,  or  $1  50  per  bushel ;  said 
if, (.■,-,  he  *was  obliged  to  have  it  to  supply  their  customers.  Riehard- 
-J  son,  who  was  examined  in  Turner's  case,  said,  Alexander,  when 
he  got  some  grain  from  him,  said  the  mill  was  out,  and  could  not  supply 
their  customers.  It  appeared  also,  that  for  many  years,  McHee  &  Alex- 
ander had  a  wagon  on  co-partnership,  the  profits  of  which  were  divided 
in  the  same  ratio.  This  wagon  hauled  much  of  the  grain  which  the 
]»laintitl'  sold  to  Alexander.  Large  quantities  of  corn,  oats  and  fodder 
were  hauled  and  put  in  the  crib,  at  Alexander's  house.  Alexander  used 
out  of  it  to  feed  his  own  stock,  and  sold  to  wagoners.  The  horses  used 
to  the  partnership  wagon,  were  also  fed  out  of  it ;  but  the  wagoner  was 
directed  to  measure  every  thing  he  used  for  these  horses,  as  Alexander 
-aid  he  charged  McBee  with  two-thirds.  The  books  showed  regular 
settlements  np  to  1835,  but  none  after. 

It  was  fully  proved,  on  the  part  of  the  defendants,  that  Alexander  had 
sent  off  and  sold  at  Augusta  and  other  places,  large  quantities  of  flour, 
which  had  been  sold  in  his  name,  with  the  proceeds  of  which,  sometimes 
salt,  sugar  and  other  articles  were  purchased.  These  articles  he  sold  to 
various  persons,  and  some  charges  for  them  are  found  in  the  mill  books; 
but  Alexander  told  the  wagoner  he  paid  the  same  freight  as  was  charged, 
to  other  persons,  and  directed  correct  accounts  of  freight  and  expenses  to 
be  kept,  as  he  had  to  account  to  McBee  for  his  share  of  the  freight  of 
the  flour  and  other  articles  transported  in  the  copartnership  wagon.  It 
was  clearly  proved  that  Alexander  bought  wheat  and  other  grain,  as  he 
said,  on  his  own  account,  and  ground  it  at  the  mill  for  his  own  benefit  ; 
that  he  was  in  as  good  credit  as  any  man  in  that  county;  and  one  of  the 
defendants,  Richardson,  said  he  would  as  soon  have  his  money  in  Alex- 
ander's hands,  as  in  the  bank.  No  witness  said  he  ever  understood  there 
was  a  general  partnership  ii)  the  buying  of  grain,  or  selling  of  grain,  or 
Hour,  other  tiiaii  the  profits  of  the  mill.  Very  few  knew  anytliing  of  the 
terms  on  which  Alexander  kept  the  mill,  and  only  one  person  had.  ever 
seen  the  agreement,  and  that  only  a  short  time  before  the  failure. 

There  was  no  entry,  in  any  of  the  books  of  the  partnership  produced, 
*102l  ^^  "'^  wheat,  corn,  kc,  for  which  the  *plaintifl's  in  these  cases 
sued  ;  but  it  appeared  some  leaves  had  been  torn  out  of  some  of 
the  Ijooks,  and  lienson  said  when  he  and  Alexander  settled,  Alexander 
referred  to  ii  liook  for  an  account  of  his  wlieat  I  did  not,  however, 
think  that  the  condition  of  the  books  alfcjrded  anv  evidence  that  they  had 
i)oeu  mutilated  I.,  suppress  anything  for  tlie  defendants'  beneflt,  yet  the 
jury  ui;iy  iiave  thought,  oUierwi.se. 


*1()2]  BENSON"    ET  AL.  VS.  m'bEE  &  ALEXANDER.  413 

In  Ricliardsoii's  case,  the  action  was  on  three  notes,  signed  by  Alexan- 
der, amounting  to  $576.  Tliey  were  counts  for  wheat  sold  and  delivered. 
The  proof  established  the  delivery  of  four  hundred  bushels,  on  whicli 
$100  had  been  paid.  Verdict  for  $300.  There  was  nothing  to*identify 
the  notes  with  the  wheat  delivered.  In  Hawkins'  case,  the  cdurse  of 
dealing  seemed  to  be,  that  Alexander  bought,  for  several  years  in  succes- 
sion, the  plaintitPs  crop  of  wheat,  amounting  in  all,  the  witness  thought. 
to  one  thousand  bushels,  besides  large  quantities  of  corn,  fodder  an<l 
oats.  The  wheat  was  sent  for  by  Alexander,  and  hauled  to  the  mill — 
some  by  McBee  &  Alexander's  wagon,  and  some  l>y  other  wagons.  The 
plaintiff  kei)t  an  account,  and  at  the  close  of  each  year's  dealings,  settled 
with  Alexander,  and  took  his  notes.  About  Januar}^,  1889,  he  received 
$.500  from  Alexander,  and  some  money  before  that  time.  The  notes  were 
consolidated,  and  one  note  for  $1000  taken.  The  action  was  on  ti)is 
note,  and  another  note  for  $90  ;  all  the  notes  were  given  for  grain.  Haw- 
kins' son  had  some  interest  in  the  grain  which  was  sold  to  Alexander, 
but  was  an  undivided  interest,  and  he  had  been  paid  by  his  father  the 
amount  of  his  share  in  the  crops.  I  did  not  understand  any  note  had 
been  given  to  the  son,  but  he  cropped  with  his  father,  and  was  entitled  to 
a  share  of  the  proceeds.  The  jury  found  for  plaintiff,  $1090,  the  amount 
of  the  notes.  There  had  been  a  large  payment  made  at,  or  about  the 
date  of  the  large  note,  more  than  enough  to  extinguish  all  interest,  and 
I  told  the  jury  I  thought  if  they  did  find  for  the  plaintiff,  they  might  give 
the  amount  of  the  notes,  as  the  evidence  proved  a  debt  to  that  amount 
for  grain. 

In  Turner's  case  there  was  proof  of  the  delivery,  in  the  same  way  as  in 
the  other  cases,  of  wheat,  corn  and  *fodder,  to  an  amount  much  r:)<in.i 
larger  than  the  sealed  note  {)roduced.  After  the  evidence  of  de-  ^ 
livery,  ]\lr.  Wardlaw  exhibited  a  sealed  note  of  Alexander's,  and  said  the 
plaintiff  claimed  no  more  than  the  amount  of  it.  It  was  not  proved 
what  the  note  was  given  for.  It  was,  i  believe,  of  later  date  than  the 
delivery  of  the  grain.  It  was  of  opinion,  and  so  told  the  jury,  that  ail- 
mitting  the  partnership  to  be  proved,  if  the  plaintiff  had  taken  Alexan- 
der's sealed  note  for  the  grain,  the  0})en  account  was  extinguijhed.  There 
was  a  count  on  the  declaration  for  the  note.  I  thought  that  the  pro- 
duction of  the  sealed  note,  under  the  circumstances,  ought  not  to  preju- 
dice the  plaintiO".  The  jury  found  for  the  plaintiif  the  amount  due  Oii 
the  note. 

In  Emory  Hawkins'  case,  the  proof  was,  the  purchase  by  Alexander 
and  delivery  at  the  mill,  of  about  iifty-four  bushels  of  wheat. 

In  February,  1840,  Alexander  made  an  assignment  of  negroes  and 
other  jiroperty,  to  Mr.  Roberts,  for  the  beneGt  of  his  creditors.  All  the 
plaintiffs  had  presented  their  demands,  and  attended  the  meeting  of  the 
creditors.  Tiiey  agreed  to  accept  their  dividends,  but  not  to  release 
Alexander  The  property  had  been  sold  and  the  dividends  ascertained, 
but  none  of  the  plaintiffs  had  received  their  proportions;  some  had 
requested  him  to  keep  the  money  until  these  suits  were  decided.  On  the 
trial  of  the  two  first  cases,  nothing  was  said  about  deducting  tho  plain- 
tiff's proportion  of  these  funds  from  the  verdict,  but  it  was  inserted  on 
the  Turner  case.  I  thought  it  ought  not  to  be  allowed,  and  so  told  the 
jury,  as  it  was  a  payment  on  the  sealed  note,  and  not  on  account  uf  the 


4U  COLUMBIA,   DECEMBER,    1^41.      VOL.  IL  [*103 

jrrain.  The  demands  presented  to  Mr.  Roberts  were  notes,  and,  except 
fn  the  Hawk-ins  case,  the  consideration  of  the  notes  was  not  i)roved.  The 
dividend  was  thirty-tliree  and  one-half  per  cent.  Hawkins'  dividend  was 
S-H5  95  ;  Turner's,  SI  >i'  51 ;  Richardson's,  $215  11,  and  the  dividend  of 
Emory  Hawkins,  $U  16.  It  should  be  stated  as  a  part  of  the  case,  that 
Alexa'nder  was  McBee's  brother-in-law,  in  whom  he  greatly  confided,  and 
that  he  seldom  visited  the  mill.  It  appeared  that  he  had  been  in  co- 
partnership with  three  other  gentlemen  in  merchandise  ;  that  he  never 
examined  the  books,  and  settled  by  the  accounts  as  made  out  by  his  co- 
^.  -,  partners.  It  was  *stated,  the  accounts  charged  in  the  books  held 
'  -1  by  Alexander,  in  the  name  of  McBee  &  Alexander,  amounted,  for 
two  successive  years,  to  more  than  §2,100,  whilst  the  cash  book,  in  which 
the  settlements  were  made,  never  exhibited  a  larger  sum  than  about 
81,600,  and  generally  less,  as  divided  between  them. 

I  was  of  opinion,  and  so  charged  the  jury,  that  according  to  the  arti- 
cles of  agreement,  there  was  a  copartnership  in  the  sale  of  the  grain 
received  at  the  mill,  as  toll,  but  unless  the  copartnership  extended  beyond 
this,  the  plaintiffs  could  not  recover.  The  extent  and  suljjects  of  a  co- 
l)artnership,  as  between  the  parties,  was  ascertained  by  the  article,  but 
as  these  were  secret,  and  known  only  to  the  partners,  those  who  dealt 
with  it  could  know  the  objects  of  the  partnership  only  by  the  business 
that  was  transacted,  and  the  things  in  which  they  dealt ;  and  if  the  evi- 
dence was  satisfactory,  that  the  buying  of  wheat  and  other  grain  was  a 
part  of  the  regular  business  of  the  mill,  carried  on  for  the  mutual  benefit 
of  the  defendants,  then  McBee  was  liable.  So,  also,  he  would  be  liable, 
if  he  knowingly  suffered  Alexander  to  hold  him  out  as  a  partner,  and  had 
thus  obtained  credit  for  the  grain,  on  the  partnership  account;  but  of  this 
I  thought  there  was  no  evidence.  The  jury  were  instructed,  also,  that 
McBee  would  be  liable,  if  the  grain  bought  by  Alexander  from  the  plain- 
tills  was  carried  into  the  partnership  account,  and  McBee  did,  in  fact, 
receive  his  share  of  the  proceeds  of  the  sales  of  the  grain  and  forage,  so 
brougiit  from  the  plaintiffs.  In  all  the  cases  stated,  the  jury  found  for 
tile  pluintitl's  On  some  others,  on  grounds  independent  of  the  copartner- 
ship, they  found  for  the  defendants.  I  do  not  think  any  thing  was  said 
as  to  McBee's  receipt  of  profits  without  notice.  If  the  grain  was  bought 
for  the  partuer.ship,  and  sold  for  its  benefit  by  Alexander,  and  McBee 
received  his  share  of  the  profits,  if  any,  I  thought  his  liability  arose  from 
l)articipation  in  profits,  or  loss  of  that  particular  transaction,  and  bis 
knowledge  or  ignorance  was  immaterial. 

From  these  vordicts  the  defendants  appealed  in  all  the  cases,  because  his 
Honor  charf,aHl  tho  jury  that  the  articles  of  agreement,  between  the  delVudants, 
were  a  copartnership. 

*  1 051  .  *  ^'"^'"'  P*^^  Evans,  J.  It  is  objected  to  the  charge  of  the  pre- 
-•  siding  Judge,  in  these  cases,  that  the  jury  were  instructed,  that  by 
the  articles  of  agreement,  the  defendants  were  partners  iu  the  sale  of  the 
gruinreceived  as  toll  at  the  mill.  The  elementary  writers  define  a  part- 
iier.'^hip  to  be,  a  contract  between  two  or  more  persons,  to  i)lace  their 
money,  effects,  labor,  and  skill,  or  some,  or  all  of  these,  in  some  lawful 
lousiness,  or  truQic,  and  to  share  the  profits  and  bear  the  loss  iu  cerlaiu 


*1()5] 


BENSON    ET  AL,  VS.  m'bEE  &  ALEXANDER.  415 


proportions.  3  Kent  Com.,  23. (a)  There  is  a  class  of  cases,  wliere  a 
portion  of  the  profits  of  a  business  may  be  given,  by  way  of  compensation 
for  personal  services  ;  as  in  the  case  of  an  overseer,  whose  wages  dej-ends 
on  tlie  quantity  of  produce  made,  and  the  price  for  which  it  is  sold;  and 
of  a  clerk  in  a  store,  who  receives,  in  lieu  of  certain  wages,  a  share  of  the 
profits.  But  these  persons  are  mere  agents,  with  a  contingent  salary. 
They  have  no  property  in  the  things  out  of  which  the  profits  are  to  arise. 
Alexander  had  no  interest  in  the  mill,  and  so  far  as  that  was  concerned, 
he  was  correctly  styled  in  the  articles  as  a  miller ;  he  was  not  McBee's 
partner  in  the  mill ;  but  when  the  grain  received  as  toll  was  mixed  up, 
and  became  the  subject  of  traffic,  each  being  part  owner,  and  interested 
in  the  proceeds  of  the  sale,  I  thought  at  the  trial,  and  still  think,  that 
they  were  partners  in  that  particular  business.  The  lines  which  divide 
partnerships  from  other  joint  interests  are  very  shadowy.  None  of  the 
elementary  writers  have  succeeded  in  making  them  out  clearly  ;  and  as  it 
would  be  an  unnecessary  investigation  in  this  case ;  and,  especially,  as 
there  is  some  diversity  of  opinion  among  my  brethren,  I  do  not  propose 
to  attempt,  (if,  indeed,  the  thing  be  practicable,)  to  lay  down  any  rules 
by  which  to  determine,  in  all  cases,  whether  the  articles  make  the  parties 
partners,  or  not.  As  a  general  rule,  it  seems  to  me,  that  relation  will 
exist,  wherever  there  is  a  joint  property  in  the  thing  sold,  and  a  mutual 
interest  in  the  result  of  the  sale.  The  partnership,  in  these  cases,  if  it 
existed,  by  the  articles,  extended  only  to  the  sale  of  the  grain  received  as 
toll ;  it  did  not  extend  to  the  buying  of  grain,  and  the  juries  were  ex- 
pressly instructed,  in  all  the  cases,  that  McBee  was  not  liable,  under  the 
articles,  for  the  grain  and  forage  purchased  by  *  Alexander  from  r^iA^ 
the  plaintiffs.  The  question  of  partnership,  as  between  the  de-  '- 
fendants,  was  to  be  decided  by  reference  to  the  articles  ;  but  as  to  others, 
to  whom  the  articles  were  unknown,  the  question  was  to  be  decided  by 
the  ostensible  business  carried  on  in  their  name  and  for  their  benefit.  It 
was  very  clear,  from  the  evidence  in  these  cases,  that,  besides  toll-wheat 
and  corn,  Alexander  carried  on  a  traffin  in  wheat,  flour,  corn,  and  other 
articles,  both  in  buying  and  selling,  and  some,  at  least,  of  these  articles, 
were  carried  into  the  books  of  account  kept  in  the  name  of  McBee  & 
Alexander,  and  were  included  iu  accounts  rendered,  and  in  notes  taken 
in  their  name.  From  these  facts,  it  was  argued  that  a  partnership,  more 
extended  than  that  embraced  by  the  articles,  did  exist  between  these 
parties,  in  fact  :  extending  to  the  buying  and  selling  of  wheat,  corn,  and 
the  other  articles  embraced  iu  the  demands  of  these  plaintiff's.  I  cannot 
say  that  the  evidence,  unexplained,  does  not  admit  of  that  interpretation. 
It  was  attempted  to  account  for  these  circumstances,  by  showing,  that 
everything  besides  the  toll,  was,  in  fact,  Alexander's  property;  but 
instead  of  kee[)ing  a  separate  book  for  his  own  private  dealings,  when- 
ever he  let  a  customer  of  the  mill  have  an  article  which  belonged  to  him- 
self, he  charged  it  in  the  account  of  the  purchaser,  on  the  books  of  McBee 
&  Alexander;  but  when  he  and  McBee  settled,  these  articles  being  his 
private  property,  were  excluded  from  the  settlement.  That  that  was  the 
fact  with  many  of  the  things  charged,  such  as  screenings,  i)igs,  pork,  and 
))eef,  there  was  no  reasonable  grounds  to  doubt;  and,  in  my  judgment, 

(a)  See  Pierson  vs.  Stcinmeijer,  4  Rich.  31 G.     An. 


416  COLUMBIA,    DECEMBER,    1841.      VOL.  II.  [*lv)6 

it  was  very  probable  that  it  was  the  fact  in  relation  to  the  other  things  ; 
but  the  books  were  kept  so  loosely,  that  I  cannot  say  the  jnry  were  not 
authorized  by  the  evidence  to  come  to  a  different  conclusion.  And  if 
from  the  proof,  they  were  satisfied  that  a  partnership  existed  between 
the  defendants,  extending  to  and  embracing  within  its  scope,  the  wheat, 
corn,  and  other  things  purchased  by  Alexander  from  the  plaintiffs,  then 
McBee  is  liable  ;  and  in  this  point  of  view,  it  is  not  material  whether  the 
plaintiffs  trusted  Alexander  alone,  or  not,  for  if  McBee  was  a  partner  of 
Alexander,  and  shared  in  the  profits  of  the  business  carried  on  by  him, 
he  would  l)e  *liable,  although  his  participation  was  not  known  to, 
-J  or  any  credit  given  to  him  by,  the  plaintiffs;  as  he  would  then 
stand  on  thefooting  of  a  secret  partner,  and  be  liable  as  such. 

Independent  of  the  ground  of  actual  partnershi|»,  there  was  some 
evidence  that  McBee  participated  in  the  proceeds  of  the  sales  of  Renson's 
wheat ;  and  also,  that  the  wheat  and  corn  bought  of  some  of  the  other 
plaintilfs,  was  to  supply  the  regular  customers  of  the  mill,  and  charged  in 
their  accounts;  and  the  jury  were  instructed,  that  if  the  wheat  and  other 
articles,  thougli  bought  on  Alexander's  credit,  were  mixed  up. with  the 
wheat  and  corn  belonging  to  the  mill,  and  sold  for  the  mutual  benefit  of 
McBee  and  Alexander,  then  McBee  would  be  liable  to  the  plaintiffs,  on 
the  ground  of  participation  in  the  profits.  Every  partnership  is  more  or 
less  limited.  None  are  so  extensive  as  to  embrace  every  thing  ;  and  one 
partner  may  carry  on  a  separate  business  on  his  own  account,  in  those 
things  which  the  co-partnership  does  not  embrace;  and  so  long  as  he 
keeps  it  separate  and  distinct,  so  long  it  will  be  his  own  business  ;  but 
when  iie  mingles  it  with  the  co-partnership  effects,  and  sells  it  for  the 
mutual  benefit  of  all  the  partners,  and  the  proceeds  of  the  sale  is  carried 
to  their  joint  account,  and  the  profits  divided  among  t'lera,  then  they 
will  be  liable  in  that  particular  transaction,  on  the  ground  of  partici- 
pation in  profit.  They  have  had  the  benefit  of  the  thing  purchased, 
and  should  be  liable  to  the  seller,  because,  by  taking  a  jtart  of  the 
l>rofus,  they  take  from  the  creditors  a  part  of  the  fund  which  is  the 
pro|)er  security  for  the  payment  of  the  debts.  (3  Kent  27,  and  the  cases 
there  referred  to  ) 

The  only  remaining  ground  of  appeal  which.-was  urged  in  this  Court, 
and  \ipon  which  it  is  thought  necessary  to  say  any  thing,  other  than  what 
is  contained  in  the  report  of  the  presiding  Judge,  is  the  second,  in  whicli 
it  is  claimed  tliat  the  defendants  should  have  had  a  credit  for  the  sums  in 
Rolierts'  hands,  as  the  i)laintiffs'  proportion  of  Alexander's  assigned 
estate.  I  do  not  understand  that  Mr.  Roberts  is  the  agent  of  the  plain- 
tiffs, lie  was  the  assignee  appointed  by  Alexander  to  sell  his  ])roperty, 
*1081  "'"^  '"'•''  '''"^  f''''>ts.  pro  rata.  Tiie  plaiiitiOs,  it  is  true,  *consented 
and  re(inosted  him  to  act,  but  so  long  as  the  money  remains  in  his 
hands,  it  is  no  payment  to  them.  Tiicy  have  not  consented  to  receive 
it  as  u  payment  of  their  demands  against  McBee  and  Alexander.  On 
the  contrary,  some  of  lliom  have  expressly  declined  to  receive  it  on  that 
neconnl.  i;-sidos  this,  as  to  a  part  of' the  plaintifls,  they  have  other 
demands  than  tliosc  recovered  in  these  actions  ;  and  the  proportion  of 
Alexander's  estate  to  which  they  are  entitled,  according  to  Mr.  Robert's 
Matement,   is   ilieir   i.rojio.'iions  of  their   whole  dcnuiiids,  a:ul  not  the 


*108j  GLOVER   VS.   HUTSON".  417 

proportion  of  what  they  have  established  in  these  cases,  as  a  debt  due 
by  McBee  and  Alexander. 

In  reviewing  the  legal  questions  involved  in  these  cases,  I  do  not 
perceive  the  defendants  have  been  able  to  establish  their  proposition, 
that  there  was  error  in  the  charge  of  the  presiding  Judge,  on  any  of  the 
legal  questions  involved.  Four  of  these  cases  were  tried  before  me,  and 
I  am  free  to  confess,  the  evidence  on  the  questions  of  partnership  and 
participation  of  profits,  was  not  such  as  to  satisfy  my  mind  of  McBee's 
liability,  but  I  cannot  say  there  was  no  evidence  from  which  the  jury 
might  not  draw  a  contrary  conclusion  ;  I  cannot,  therefore,  see  how  we 
can  interfere  with  the  verdicts,  without  trenching  upon  the  legitimate 
province  of  the  jury.  I  am  willing,  whenever  called  on,  to  take  the 
responsibility  of  deciding  the  law  of  a  case,  and  in  general,  to  leave  to 
the  jury  the  undivided  responsibility  of  deciding  the  facts. 

In  the  consideration  of  these  cases,  my  remarks  have  been  more  par- 
ticularly directed  to  the  four  cases  tried  before  me.  Benson's  case, 
which  was  tried  before  my  brother  Butler,  does  not  vary  in  any  material 
point  from  the  others,  and  should  share  the  same  fate.  The  motions,  in 
all  the  eases,  are  dismissed. 

EiCHARDsoN,  O'Neall,  and  Butler,  concurred.     Earle,  J.,  absent. 

(a)  See  11  Ricli.  105  ;  4  Rich.  309  ;  2  Strob.  471.     An. 


*C.  Glover,  Assignee  op  Cresswell,  vs.  R.  Hutson.     [*109 

Where  there  has  been  a  breach  of  the  warranty  of  a  slave,  and  the  party  purchas- 
ing has  been  deprived  of  the  slave,  by  a  paramount  title,  tlie  measure  of  dama- 
ges, for  the  breach  of  such  warranty,  is  the  price  paid  for  the  slave. 

[The  right  of  action  is  not  taken  away  by  paynient  to  the  warrantee  of  the  price 
which  the  slave,  after  having  been  taken  from  him  was  sold  for ;  but  the  quantum 
of  recovery  may  be  thereby  diminished.     An.'\ 

This  case  was  tried  before  his  Honor  Judge  Gantt,  at  Abbeville,  Fall 
Term,  1840,  who  reported  the  facts  of  the  case  to  the  Appeal  Court,  but 
as  they  are  sufficiently  detailed  in  the  judgment  of  the  Court  pronounced 
by  Evans,  J.,  it  is  thought  to  be  unnecessary  to  give  more  than  is  therein 
recited,  which  will  be  sufficient  to  a  proper  understanding. 

Assumpsit  for  breach  of  warranty. 

Curia,  per  Evans,  J.  It  is  necessary  that  I  should  make  a  state- 
ment of  the  case  in  order  that  the  opinion  of  the  Court  may  be  understood. 
In  about  1837,  the  defendant  Ilutson  sold  to  W.  Cresswell  a  negro 
woman  named  Violet  for  the  price  of  seven  hundred  dollars.  At  the 
time  of  the  sale  J.  Wardlaw  had  an  unsatisfied  execution  in  the  sheriff's 
office  against  Hutson  for  one  thousand  live  hundred  dollars.  On  the 
15th  October,  1838,  Hutson  recovered  against  Cresswell  a  judgment  for 
seven  hundred  and  sixty-one  dollars  and  sixty  cents,  the  amount  of  note  and 
interest  given  for  the  price  of  Violet.  Before  the  sale  day  in  November, 
1838,  the  sheriff  of  Abbeville,  bv  the  direction  of  Wardlaw,  levied  his 
Vol.  L— 28 


418  COLUMBIA,    DECEMBER,    1841.      VOL.  II.  [*109 

execution  upon  Yiolet  as  the  property  of  Hutson.  At  the  same  time  he 
had  in  his  possession  Hutson's  execution  against  Cresswell  and  perhaps 
others.  These  were  levied  on  all  CresswelPs  other  property.  The  rest 
of  the  property  levied  on  the  sheriff  took  into  his  possession,  but  left 
Yiolet  with  Cresswell.  At  the  sale  day  in  November  all  the  property 
was  sold  according  to  the  levies  ;  that  is  Violet  was  sold  as  the  property 
of  Hutson  to  satisfy  Wardlaw's  execution,  and  the  rest  of  the  property 
was  sold  to  satisfy  the  cases  against  Cresswell.  On  the  13th  November 
whicb  was  a  few  days  after  the  sheriff's  sale,  Wardlaw  directed  the  sheriff 
to  apply  the  proceeds  of  the  sale  of  Yiolet,  to  wit,  three  hundred  dollars, 
to  the  satisfaction  of  the  cases  against  Cresswell,  and  on  the  15th  No- 
vember, the  amount  of  Hutson's  execution  against  Cresswell  for  the  price 
of  Yiolet  was  paid  to  Wardlaw,  in  part  of  his  case  against  Hutson.  At 
October  term,  1838,  Charles  J.  Glover,  the  plaintiff,  recovered  a  judg- 
^,,„-,  *ment  against  Cresswell,  and  on  the  28th  of  October,  Cresswell 
-I  was  arrested  on  a  ca.  sa.  at  the  suit  of  Glover,  and  in  order  to 
obtain  his  discharge  under  the  prison  bounds'  Act  he  assigned  to 
Glover  amongst  other  things  as  follows  "  a  chose  in  action  or  demand 
against  Robot  Hutson  of  seven  hundred  dollars,  being  the  price  of  a 
negro  woman  bought  by  William  M.  Cresswell  of  the  said  Robert  Hut- 
son, which  slave  was  afterwards  sold  by  the  sheriff  under  a  /?.  fa.  against 
Robert  Hutson  and  as  his  property,  at  the  suit  of  Joseph  Wardlaw."  It 
was  to  recover  this  demand  founded  on  an  alleged  breach  of  the  warranty 
of  the  title  of  Yiolet  that  this  action  was  brought.  On  the  trial  of  the 
case  at  Abbeville  before  Judge  Gantt,  he  was  of  opinion,  and  so  charged 
the  jury,  that  by  the  sale  of  Yiolet,  as  Hutson's  property,  there  was  a 
breach  of  warranty,  for  which  the  plaintiff  was  entitled  to  recover  back 
the  whole  purchase  money  ;  but  the  jury  with  a  view  to  do  justice  between 
the  parties,  found  a  verdict  for  about  three  hundred  and  fifty  dollars, 
thereby  deducting  from  the  price  of  Yiolet,  the  sum  for  which  she  was 
sold  by  the  sheriff,  and  probably  a  small  balance  due  on  Hutson's  execu- 
tion against  Cresswell.  From  this  decision  the  defendant  appeals  on 
several  grounds,  but  they  resolve  themselves  into  this :  that  there  is  no 
such  breach  of  the  warranty  as  will  entitle  tl:e  plaintiff"  to  recover.  The 
plaintiff  also  appeals,  because  his  verdict  is  far  less  than  the  whole  price 
which  Cresswell  paid  Hutson  for  Yiolet,  but  he  is  content  to  let  the  ver- 
dict stand.  If  the  sum  for  which  Yiolet  was  sold  by  the  sheriff,  to  wit, 
three  hundred  dollars,  had  been  applied  to  the  satisfaction  of  Wardlaw's 
execution  against  Hutson,  I  think  there  could  be  no  doubt  but  that  this 
would  have  been  a  breach  of  the  warranty.  It  is  equally  clear  that  it 
was  the  duty  of  the  Sheriff  so  to  apply  it,  and  that  he  would  have  done 
80  but  for  the  subsecpietit  order  of  Wardlaw.  Now  if  Wardlaw  five  or 
six  days  after  the  sale  could  defeat  Cresswell's  action,  I  can  see  no  reason 
why  he  might  not  do  it  at  the  end  of  as  many  weeks  or  months,  and  this 
would  put  it  in  the  power  of  Wardlaw  at  any  time  to  determine  whether 
the  sale  of  Violet  was  or  was  not  a  breach,  and  thus  Cresswell's  right  of 
action  would  dejtend  on  the  volition  of  another  and  not  on  himself. 
♦Ill]  ^."Pl'O^e^'i'css^'t-'Il's  other  property  had  paid  *all  the  cases  against 
him  and  there  had  been  no  case  to  which  the  three  hundred  dollars 
could  ai)ply ;  would  he  l)e  obliged  to  take  this  money  if  Wardlaw  should 
abandon  his  right  to  it  ?     I  presume  this  proposition  can  hardly  be  main- 


Ill] 


DALRYMPLE    VS.    LOFTON".  419 


tained.  Uuder  the  warranty  Cresswull  was  entitled  to  have  the  negro, 
and  if  deprived  of  her  by  any  paramount  title  or  lien,  he  was  entitled 
under  the  law  of  this  State,  to  have  his  money  paid  baek  as  the  measure 
of  damag'es.  But  it  is  said  CrcsswcU  was  in  failing  eircurastances  and 
the  sheriff  had  executions  against  him  which  he  might  have  levied  on 
Violet.  This  may  have  been  the  case  ;  and  it  is  probable  that  the 
sheriff  would  have  so  levied  these  executions,  but  he  did  not  do  so.  lie 
levied  and  sold  under  Wardlaw's  execution,  and  we  cannot  know  that  she 
would  have  been  sold  if  Cresswell  had  been  left  to  contend  with  his  own 
creditors.  He  might  have  made  some  arrangements  to  save  her  ;  or  if 
she  had  been  sold,  so  that  liis  creditors  were  to  receive  the  money,  she 
might  have  brought  more  than  she  did  ;  which  was  less  than  half  of  what 
Cresswell  paid  for  her.  It  may  be  that  the  very  fact  that  by  the  levy,  she 
was  abstracted  from  Cresswell's  means  of  paying  his  debts,  may  have 
drawn  down  his  creditors  upon  him  at  that  time.  Upon  the  wiiole,  it 
seems  to  me  the  sale  under  Wardlaw's  execution  was  a  breach  of  the 
warranty,  and  it  did  not  depend  on  WaMlaw's  will  to  determine  whether 
Cresswell  should  recover  back  the  purchase  money  or  not.  The  fact  that 
Ilutson  [Cresswell  ?  An.^  has  had  the  benefit  of  the  sum  for  which  the 
shei-iff  sold  Violet,  would  seem  in  justice  to  reduce  the  damages  by  that 
amount,  and  as  the  jury  have  allowed  it,  and  the  plaintiff  is  content  with 
the  verdict,  this  Court  is  not  disposed  to  interfere.  The  motion  is  dis- 
missed, 

Richardson,  Earle,  and  Butler,  JJ.,  concurred.  O'Neall,  J.,  dis- 
sented. 

Burt  and  Thompson,  for  motion.     Wilsoyi,  contra. 


*S.  M.  Dalrymple  vs.  Wm.  Lofton. (a)  [*112 

1.  In  an  action  of  slander,  where  the  words  spoken,  were,  that  the  "plaintiti' 
had  sworn  falsely  iu  giving  evidence,  before  a  certain  Justice  Johnson,  in  a 
trial  heard  before  liim,"  it  is  not  necessary  to  aver  in  the  declaration,  that  the 
justice  had  jurisdiction  of  the  cause  in  which  the  plaiutilT  was  sworn  as  a  wit- 
ness, or  that  his  testimony  was  material.  Both  of  these  are  j)resumed,  until 
the  contrary  appears. 

2.  If  there  be  a  colloquium  [prefatory  averment,  An.'\  referring  to  the  trial  of  a 
cause  before  a  Justice,  in  which  the  plaintiff  was  examined  as  a  witness,  and  in 
it,  it  is  averred,  that  the  defendant,  speaking  of  such  trial  and  testimony,  spoke 
the  same  words,  they  would  be  actionable.  They  impute  a  false  swearing,  in  a 
court  of  justice,  which  prima  facie,  imjiorts  perjury.  If  these  general  facts  m« 
averred  be  proved,  it  is  enough  on  the  part  of  the  plaintiif. 

3.  It  is  the  right  and  duty  of  a  Jud.^je,  to  instruct  the  j  ury  fully  upon  the  law 
arising  out  of  the  facts  proved — and  in  an  action  of  slander,  where  the  defend- 
ant had  charged  the  plaintiff  with  having  sworn  falsely  before  a  Justice,  in  a 
certain  trial  in  which  the  plaintiff  was  examined  as  a  witness,  the  defendant,  on 
the  trial  of  the  case,  had  the  right  to  have  the  jury  instructed,  whether  the 
evidence  of  the  plaintiff  before  the  Justice,  was  imuiaterial  to  the  point  ui  issue 
or  not.  And  ujion  the  refusal  of  the  presiding  Judge  so  to  instruct  the  jury,  a 
new  trial  was  gi-anted. 

(o)  S.  C.  again,  2  Sp.  5S8.     An. 


420  COLUMBIA,    DECEMBER,    1841.      VOL.  IL  [*112 

Tried  before  Gantt,  J.,  at  Newberry,  Fall  Term,  1840,  who  reports  the 
facts  of  the  case  as  follows  : 

This  was  an  action  of  slander,  in  which  the  jury  gave  a  verdict  for  the 
plaintiff.  The  declaration  contained  several  counts.  That  a  suit  had 
been  tried  before  Jesse  Johnson,  Esquire,  a  justice,  wherein  William 
Lofton,  adniinstrator  of  James  M.  Dillard,  was  plaintiS;  and  Jeremiah 
Joiner  was  defendant.  That  in  the  trial  of  the  said  case,  the  plaintiff, 
S.  M.  Dalrymple,  was  sworn  as  a  witness,  and  gave  testimony,  and 
that  it  was  'in  reference  to  the  testimony  thus  given  by  the  plaintiff, 
before  the  magistrate  on  said  trial,  that  the  defendant  said  he  had  not 
sworn  the  truth,  that  he  had  sworn  falsely,  as  alleged  in  the  declaration, 
and  that  the  defendant  meant  to  charge  the  plaintiff  with  having  perjured 
himself. 

The  defendant  relied  on  the  pica  of  the  general  issue,  and  that  alone, 
Yery  many  witnesses  were  sworn  in  the  case,  and  when  the  evidence 
closed,  the  counsel  for  defendant  moved  for  a  nonsuit,  on  grounds 
similar  to  those  taken  in  the  grounds  of  appeal, — which  were  overruled. 
The  Court  had  previously  overruled  the  going  into  evidence,  to  show 
^.,„-,  what  was  proved  before  the  magistrate,  *and  that,  too,  on  an 
-I  objection  properly  raised  on  the  part  of  the  counsel  for  the 
defendant. 

I  did  decline  to  charge  the  jury  as  I  was  requested  to  do,  because  I 
was  of  opinion  that  the  facts  involved  in  the  issue  made  up,  were  whether 
the  words  alleged  in  the  declaration  to  have  been  spoken,  were  proved, 
and  whether  the  meaning  given  them  by  the  innuendo,  was  correct ; 
advantage,  (if  any  could  be  taken,)  for  defects  or  omissions  in  the  decla- 
ration, must  be,  by  pleading  specially,  and  not  having  been  specially 
pleaded  to,  they  were  admitted  to  be  true  ;  all  allegations  material  in  a 
cause,  which  are  not  traversed  by  the  defendant,  are  admitted  to  be  true, 
and  for  these,  judgment  by  nihil  dixit  maybe  entered  up  by  the  plaintiff. 
The  grounds  of  objection  noticed  in  this  appeal,  appear  to  me  to  be 
either  on  matters  immaterial  and  irrelevant  to  the  issue,  or  such  as  were 
falsified  by  the  evidence  which  was  offered. 

I  quote  the  fullowing  authorities,  as  illustrative  of  the  law,  applicable 
to  this  case,  viz.  :  Selwyn's  N,  P.,  p.  1160,  Mid.,  11G4  and  IIGG. 

In  the  case  of  Xiven  vs.  Munn,  13  Johnson's  Reports,  48,  where, 
in  an  action  like  the  itresent,  and  a  verdict  for  plaintilf,  it  was  attempted 
to  arrest  the  judgment  on  the  following  grounds:  1st.  That  it  is  not 
expressly  averred  that  the  testimony  of  Niven  was  in  a  cause,  in  which 
the  justice  had  jurisdiction  ;  and  2ndly,  it  is  not  expressly  stated,  that 
the  testimony  s])okun  of  was  upon  a  point  material  in  the  cause — the 
motion  failed,  and  the  plaintiff  had  judgment.  The  two  cases  are  very 
similar  as  to  the  facts,  and  the  case  quoted,  shows  that  if  the  declaration 
in  the  case  at  bar  was  less  full  in  its  statements,  still  the  omission  would 
not  Ijc  fatal. 

'I'hc  (lorcndiint  appeals,  and  moves  for  a  nnnsuif. 

1.  IJt'funHt;  the  avornieiits  alleged  that  the  plaintiff  was  sworn  as  a  witness 
for  and  on  beliiiU'ol'  the  defendant,  on  the  trial  before  the  justice,  which  was 
not  proved  as  iiilejred. 

2.  iJfCttUse  it  apiieared,  by  the  eviilence  of  tlie  plaintiff,  that  the  tcstniony  of 


*llo]  DALRYMPLE    VS.    LOFTON.  421 

tlie  plaintiff",  before  the  justice,  in  *i-o]ation  to  wliioh  he  was  charged  witli   t;  ,  i  i 
false  swearint;:,  was  not  material  to  the  point  then  in  issue.  ^ 

3.  Because  the  words  proved  did  not  support  tlie  words  laid  down  in  the 
declaration. 

For  a  new  trial. 

1.  Because  his  Honor  refused  to  charcc  the  jury  (on  boinjr  specially  rorpiested 
so  to  do,)  that  if  the  evidence  o-iven  by  the  plaintilf,  before  the  justice,  was 
immaterial  to  the  point  in  issue,  that  the  action  could  not  lie  sustained,  giving 
as  a  rei^son,  that  the  olyection  should  have  been  made  by  the  [)leadings. 

2.  Because  it  fully  appeared  by  the  testimony,  that  the  evidence  given  by 
the  plaintiiT  before  the  justice,  was  immaterial  to  the  point  in  issue,  which  was 
a  question  of  law,  on  which  his  Honor  refused  to  charge  the  jury. 

3.  Because  his  Honor  held,  that  under  the  pleadings,  the  defendant  could 
not  show  that  the  evidence  given  by  the  plaintiff'  before  the  justice,  was 
immaterial  to  the  point  in  issue,  inasmuch  as  the  defendant  had  pleaded  the 
general  issue. 

4.  Because  his  Honor  permitted  the  plaintiff"  to  prove  the  contents  of  what 
the  plaintiff' had  sworn  before  the  justice,  (although  not  alleged  in  the  declara- 
tion,) and  afterwards  refused  to  decide  or  charge  that  it  was  material,  or 
immaterial  to  the  issue  before  the  justice. 

ji.  Because  his  Honor  charged  the  jury,  tliat  the  declaration  contained  a 
sufficient  allegation  of  the  cause  of  action,  and  that  the  evidence  fully  sustained 
the  counts  therein,  and  that  the  only  question  for  them  was  the  amount  of 
damages. 

And  in  arrest  of  judgment. 

1.  Because  there  was  no  averment  in  the  declaration  that  the  justice  before 
whom  the  plaintiff",  in  this  suit,  was  sworn,  had  jurisdiction  of  the  cause,  and 
that  the  evidence  given  by  the  plaintiff"  on  that  trial,  was  material  to  the  point 
in  issue. 

2.  Because  the  declaration  of  the  plaintiff  in  other  particulars,  was  wholly 
iusufficieut,  in  law,  to  warrant  the  finding  of  the  jury. 

*Fair,  for  the  motion.     Cited  1st  Hawk.  218,  223  ;^  1  McMull.  499,  Ham-  p^-^- 
ilton  vs.  Langley.     He  contended  that  the  phiiutifit"  was  bound  to  show  the   '• 
materiality  of  the  testimony. 

Take,  said  Mr.  F.,  the  evidence  of  Esquire  Johnson,  and  the  testimony  was 
shown  to  be  immaterial.  Cited  20  J.  R.  341  ;  cannot  recover  where  immateriality 
appears.  Cited  also,  13  J.  R.  81  ;  20  ib.  344  ;  9  Cow.  31  ;  1  Wend.  475  ;  12  ib. 
500  ;  16  ib.  450. 

Pope  and  Caldwell,  contra.  Cited  5  .1.  R.  1S8,  as  to  actionable  words  ;  1  Bail. 
595,  words  explanatory;  Starkie  on  Lib.  85,  86;  11  Wend.  38  ;  16  do.  450.  The 
burden  rests  on  the  defendant,  to  show  the  immateriality  of  the  evidence. 

[Note. — The  declaration,  or  a  copy,  to  make  this  case  more  intelligible,  should 
accompany  the  report  of  this  case — biit  the  Reporter  has  never  been  furnished 
with  one,  and  consequently  cannot  publish  it. — Ixep.'\ 

Curia  per,  O'Neall,  J.  Tliis  was  an  action  of  slander,  for  words 
spoken.  The  declaration  sets  out,  by  way  of  inducement,  tliat  a  case 
had  been  pending  before  and  tried  by  Jesse  Joiinson,  one  of  the  Justices 
of  the  qa<n"uni  for  Laurens  district,  in  which  the  defendant,  as  adminis- 
trator of  James  ]\[.  Dillard,  deceased,  was  plaintiff",  and  Jerry  Joiner  was 
defendant  ;  and  that  this  plaintiff",  on  the  trial  of  that  case,  was  examined 
as  a  witness  ;  and  that  tlie  defendant,  in  a  conversation  of  and  concern- 
ing that  suit,  and  of  the  testimony  given  by  the  plaintiff",  said,  "you  did 
not  swear  the  truth  in  the  case  of  myself,  administrator  of  James  M.  Dil- 


422  COLUMBIA,   DECEMBER,    1841.      VOL.  II.  [*115 

lard,  deceased,  and  Jerry  Joiner;"  "you  swore  falsely  before  Jesse 
Johnson,  Esquire,  on  the  trial  of  the  case  of  myself  vs.  Jerry  Joiner  ;"  "  you 
swore  a  lie  before  Jesse  Johnson,  Esq.,  on  the  trial  of  the  case  of  myself  and 
Jerry  Joiner."  These  words  were  also  charged  as  uttered  in  the  third 
person  ;  and  other  words  of  similar  import,  were  also  charged.  There 
was  no  averment  in  the  declaration,  that  the  Justice  had  jurisdiction  of 
the  case,  or  that  the  testimony  of  the  plaintiff,  to  which  the  words 
referred,  was  material  to  the  point  in  issue  before  the  Justice.  On  the 
trial  in  the  first  instance,  when  the  plaintiff  was  about  going  into  proof 
*nn  ^^  ^^^  testimony  given*  by  him,  and  as  to  which  the  words  were 
J  sjioken,  the  defendant's  counsel  objected  to  the  proof,  on  the 
ground  that  there  was  no  averment  of  the  materiality  of  such  testimony 
in  the  declaration,  and  hence  no  such  proof  could  be  received.  This  ob- 
jection was  sustained,  on  the  ground  that  it  was  wholly  immaterial 
whether  the  testimony  was  or  was  not  material.  In  a  subsequent  stage  of 
the  case,  it,  however,  appears,  that  Esquire  Johnson  stated  the  plaintiff 
in  answer  to  a  question  put  by  the  defendant,  "  whether  the  $15,  the  sub- 
ject matter  of  the  suit,  was  placed  in  the  store  of  Dillard  &  Dalrymple  ?" 
answered,  "that  it  was  not,  that  he  knew  of."  At  the  close  of  the  plaintiff's 
case,  a  motion  was  made  for  nonsuit,  on  various  grounds,  which  have  been 
again  urged  in  this  Court.  In  the  defence,  the  fact  that  the  plaintiff  proved 
before  the  Justice,  and  about  which  the  defendant  alleged  the  false  swearing, 
was  brought  out  from  John  C.  Johnson,  who  said  the  question  asked  of 
the])laintiff  was  "whether  the  $15,  for  which  Joiner  held  the  receipt  against 
the  firm  of  Dillard  &  Dalrymple,  had  gone  into  the  lower  firm  ?"  "  Dal- 
rymple said,  not  as  he  knew  of."  From  the  pleading  and  the  testimony, 
1  supi)0se  that  Joiner  was  sued  on  a  demand  which  he  owed  to  Dillard 
alone,  and  that  he  set  up,  by  way  of  discount  or  payment,  the  receipt  of 
Dillard  and  Dalrymi)le,  for  $15.  Thus  stated,  we  can  see  and  under- 
stand what  was  perhaps" the  issue  before  the  Justice,  and  the  application 
of  the  ]iroof  The  dei'endant  contended  that  the  testimony  given  by  this 
l)laintiir,  and  of  which  he  spoke,  was  immaterial,  and  hence,  that  in  law, 
there  was  no  slander.  Tlie  presiding  Judge  held,  that  the  words  imputed 
perjury,  and  whether  the  testimony  of  the  plaintiff  was  material  or  not, 
on  the  trial  before  the  Justice,  was  a  wholly  immaterial  question  ;  and 
declined  to  charge  the  jury  that  "if  the  evidence  given  by  the  plaintiff 
was  immaterial  to  the  point  in  issue,  that  the  action  could  not  be  main- 
tained."    The  jury  found  a  verdict  for  the  plaintiff  of  $500  damages. 

The  grounds  taken  in  arrest  of  judgment,  cannot  avail  the  defendant. 
It  is  very  clear,  on  authority,  that  it  is  not  necessary  to  aver  in  the  decla- 
ration, that  the  Justice  had  jurisdiction  of  the  cause  in  which  the  plain- 
*117l  ^''^"^^'^'^  sworn  *as  a  witness,  or  that  his  testimony  was  material. 
IJoth  of  these  are  presumed,  until  the  contrary  api)ears.  2  Black- 
ford, 242  ;  Nircn  vs.  MiDvn,  13  J.  R.  48  ;  Chaqiman  vs.  Smith,  13  J. 
K.  7«;  Crooks/innis  vs.  (Jrai/,  20  J.  R.  344;  HamiUon  vs.  Laiviley, 
1  Mc.Mull.  A\)H.  This  last  autliority  is  indeed  decisive  of  the  grounds  in 
arr<'st  of  judgment,  for  it  is  the  judgment  of  our  own  Court  of  Appeals, 
in  I)eocml)er,  l.s;J5,  upon  tlie  i)oints  now  made. 

The  1st  ground  of  nonsuit  cannot  help  the  defendant.  The  testimony 
is  not  e.vplicit  that  this  phiintiff  was  sworn  as  a  witness  for  the  defendant, 
in  the  cause  before  the  .Iu>ti(c,  l)ut  it  may  be,  for  aught  which  api)ears 


*117]  DALRYMrLE    VS.    LOFTON.  423 

Oil  Ihe  Judge's  notes,  that  such  was  the  fact,  and  after  verdict,  unless  it 
be  phiin  that  no  such  testimony  was  f2.'iven,  it  is  in  vain  to  ask  for  a  non- 
suit. Tlie  od  ti'round  for  nonsuit  was  not  arg-ued  here ;  and  we  may, 
therefore,  conchide  that  it  was  intended  to  be  al)aiidoned.  If,  however, 
it  was  not,  it  is  only  necessary  to  refer  to  the  Juds^e's  notes,  to  see  that 
the  words  were,  in  substance,  proved  as  laid.  The  2d  ground  of  the 
motion  for  nonsuit  and  all  the  grounds  for  new  trial  relate  to  the  same 
question,  whether  the  materiality  of  the  testimony  given  by  the  plaintiff 
to  the  issue  before  the  justice  was,  in  any  shape,  or  by  either  party  to  be 
inquired  into  on  the  trial  of  this  case. 

There  is  a  wide  distinction  between  words,  which  in  themselves  import 
a  crime,  and  words,  which  in  themselves  have  not  that  meaning ;  but 
which  have  that  effect  by  their  reference  to  some  extrinsic  circumstances. 
In  the  lirst  class,  if  the  person  uttering  the  words  does  not,  at  the  time, 
add  other  words,  which  apply  them  to  a  transaction  out  of  which  no  crime 
couid  arise,  or  if  the  witnesses  do  not  understand  them  as  so  ai)i)]Ying, 
then  no  matter  to  what  subject  the  party  speaking  really  intended  to 
apply  them,  the  words  are  actionable.  Fegram  vs.  Styrom,  (1  Bail.  595.) 
In  the  second  class,  the  words  are  actionaljle  by  being  connected  with  the 
extrinsic  circumstances,  which  raise  the  belief  that  a  crime  was  imputed. 
To  say  of  one  "you  swore  a  lie  before  Esq.  Lampkin,"  without  a  collo- 
quium is  not  actionable,  (a)  For  it  may  be  that  the  oath  was  extra 
judicial^  But  if  there  be  a  colloquium,  referring  to  a  trial  of  a  cause 
before  a  justice  in  which  the  plaintiff*  was  examined  as  a  witness,  r:i.iio 
and  in  it  it  is  averred  that  the  defendant  speaking  of  such  trial  and  ^ 
testimony  spoke  the  same  words,  they  wonld  be  actionable.  For  under 
such  circumstances,  they  impute  a  false  swearing  in  a  court  of  justice, 
which  i^rima  facie  imports  perjury.  If  these  general  facts  so  averred  be 
proved,  it  is  enough  on  the  part  of  the  i)laintift".  For,  as.  was  said  by  my 
brother  Earle,  in  the  case  ol  Hamilton  vs.  Langhy,  "the  presumption  is, 
that  what  a  witness  swears  is  material,  and  if  the  defendant  expects  to 
4ivoid  a  recovery  on  that  ground,  he  must  show  that  tlie  jyoj'ticidm-'  oath 
charged  to  he  false  tvas  on  an  immaterial  point.''^  If  the  defendant  can- 
not show  that  in  point  of  fact,  no  perjury  could  have  been  committed  in 
the  transaction  to  which  he  alluded,  then,  he  is  answerable  for  the  legal 
consequences  of  slander,  no  matter  what  might  have  been  his  intention. 
But  if  the  defendant  can  show,  that  perjury  could  not  arise  out  of  the 
transactioD  to  which  he  alluded,  then,  I  think,  he  will  have  shielded  him- 
self from  the  consequences  of  his  rash  speaking.  For  the  ground  on 
which  the  action  of  slander  for  words  actionable,  per  se,  proceeds  is, 
"  that  if  true  they  wonld  subject  the  plaintiff  to  infamous  legal  punish- 
ment. "(&)  If  the  defendant  is  able  to  show  that  even  if  his  words  be 
true,  that  yet  no  crime  could  exist,  how  can  it  be  pretended  that  the 
jilaintiff"  in  slander  can  be  entitled  to  recover  damages  when  the  ground 
of  the  action  is  removed  ?  To  affirm  this  question  a  person  must  believe 
that  a  building  can  stand  after  the  foundation  has  been  swei)t  away.  By 
way  of  illustration,  let  us  suppose,  that  the  defendant  could  show,  that 
Mr.  Justice  Johnson,  who  tried  this  cause  and  whose  jurisdiction  is  limited 
to  matters  of  contract,  had  issued  a  summons  in  slander,  and  that  the 

(f/)  2  N.  cSc  McC.  3()4.     An.  (6)  10  Rich.  118.    An. 


424  COLUMBIA,    DECEMBER,    1841.      VOL.  II.  [*118 

plaintiff,  on  the  trial  of  that  case,  had  been  examined  as  a  witness,  and 
t'lat  it  was  of  his  testimony  thus  given  the  defendant  spoke,  when  he 
uttered  the  words,  would  not  such  a  showing  as  satisfactorily  show,  that 
there  could  not  arise  an  imputation  of  perjury  from  the  words  spoken,  as 
would  be  the  case,  if  the  jilaintiff,  as  a  witness,  had  never  been  sworn  or 
examined  ?  1  think  so.  For  if  the  justice  had  not  jurisdiction  in  law, 
there  was  no  suit,  no  oath,  no  examination.  So  if  the  testimony  given 
^,,„-|  was  clearly  immaterial*  to  the  issue,  it  follows  that,  as  one  of  the 
J  ingredients  of  perjury  is  wanting,  the  plaintiff's  words,  although 
prima  facie  importing  a  crime,  yet,  when  sifted,  cannot  have  that  mean- 
ing, because  out  of  the  matter  to  which  they  referred  there  could  not  be 
perjury,  (ffl)  I  should  hence  conclude  from  general  reasoning,  that  the 
defendant  might  inquire  as  to  the  materiality  of  the  testimony  given  by 
the  plaintiff  on  the  trial  before  the  justice,  and  show,  if  he  could,  that  it 
was  wholly  immaterial.     This  I  think  consistent  with  all  authority. 

In  Palmer  vs.  Bogan,  So.  Ca.  Rep.  (Cheves,)  52,  (which  is  very 
imperfectly  reported,  and  which  will,  I  hope,  be  more  fully  done  in  a  note 
to  lliis  case,)  the  defendant  argued,  that  he  was  entitled  to  a  nonsuit,  on 
the  grotnid,  that  the  materiality  of  the  plaintiff's  testimony,  to  which  the 
defendant's  words  referred,  was  not  shown.  The  Court,  in  the  opinion, 
did  not  contest  the  ground,  but  showed  that  the  materiality  was  suffi- 
ciently established.  The  plaintiff's  testimony  in  that  case  was  given  in 
the  Court  of  Common  Pleas,  and  we  all  then  thought,  that  it  was  suffi- 
cient for  the  plaintiff  to  show  that  in  fact  a  suit  was  tried  in  the  Common 
Pleas,  in  which  the  plaintiff  was  sworn  and  examined  as  a  witness  :  but 
as  it  was  unnecessary  for  the  decision  of  that  case  to  give  that  opinion,  it 
wus  withheld.  That  opinion  is,  however,  consistent  with  this.  For 
there,  there  was  no  attempt  on  the  part  of  the  defendant  to  show  the 
immateriality.  His  complaint  was,  that  the  plaintiff" 's  proof  M-as  not 
enough  to  go  to  the  jury. 

I  iiave  referred  to  the  case  from  2  Blackford's  Rep.  242  ;  and  it  is 
fully  to  the  puint,  that  if  the  materiality  be  not  shown  by  the  plaintiff,  it 
is  not  a  ground  of  nonsuit,  and  so  far,  I  fully  agree  with  it.  There  is 
nothing  in  it  which  impinges  the  doctrine  that  the  defendant  may  inquire 
as  to  the  immateriality,  and  if  it  is  made  out  by  the  defendant,  that  it 
would  be  a  good  defence.  In  Chapman  vs.  Smith,  13  J.  R.  78,  the 
great  Judge,  (Mr.  Justice  S|)encer,)  who  delivered  the  opinion  of  the 
Court,  after  overruling  the  objection  that  the  Justice's  jurisdiction  was 
not  averred  in  the  declaration  and  the  objections  to  the  verdict,  states 
tlie  precise  rule  for  which  I  am  contending.  "  On  the  trial  (he  says)  it 
would  have  been  competent  to  either  party,  to  inquire  in  reference  to 
*1201  )^''"^  "^^^^  ^^  ^'**^  ^evidence  given  the  words  were  spoken  ;  and  if 

"^  -■  it  had  appeared  that  they  were  spoken  of  evidence  entirely  imma- 
terial, it  is  not  to  be  i)resunii.'d  that  the  i)laintiff  below  would  have 
olttained  a  verdict."  lljid.  81.  In  Crookshanks  vs.  Grar/,  20  J.  R., 
344.  the  precise  point  was  made,  and  decided.  Woodvvorth,  J.,  speak- 
ing of  it  .said,  "on  the  trial  of  this  cause  it  was  competent  to  either  party 
to  in(piire,  in  reference  to  what  part  of  the  evidence  given,  the  worils 
were  spoken,  and   if  they  were  spoken  of  evidence  entirely  immaterial, 

(«)  See  2  Sp.  7.     An, 


*120]  DALRTMPLE   Vfi.    LOFTON.  425 

the  plaintiff  cannot  recover."  Ibid,  349.  In  Power  vs.  Price,  10  Wend. 
450,  in  a  note,  the  Ciiancellor  states  tlie  rule  to  be,  "  where  the  words 
spoken  are  such  as  naturally  to  make  the  impression  upon  the  minds  of 
the  hearers,  that  the  part}'  s[)oken  of  has  been  guilty  of  the  crime  of  per- 
^iiry,  it  is  not  incumbent  upon  the  ])arty  prosecuting  an  action  for  the 
speaking  of  such  words,  to  prove  affirmatively  that  the  testimony  given 
by  him  was  material,  but  the  burden  of  proving  its  immateriality,  and 
that  there  was  no  intention  to  impute  the  crime  of  perjury,  rests  with  the 
defendant."  After  these  authorities,  the  rule  for  which  I  am  contending 
may  be  considered  as  definitely  settled.  It  only  now  remains  to  apply  it 
to  this  case.  The  defendant,  under  it,  has  no  })retence  to  call  for  a  non- 
suit. The  case  v^'n?.  prima  facie,  made  out  by  proof  of  the  publication 
of  the  words,  in  reference  to  the  trial  before  Esquire  Johnston,  in  which 
the  phiintilf  was  examined  as  a  witness.  If  it  had  appeared  from  the 
plainiilT's  proof,  that  the  testimony  was  to  an  immaterial  point,  then  the 
])laintitf  ought  to  have  been  nonsuited.  But  it  is  not  clear,  from  the 
proof  of  the  magistrate,  (which  was  the  testimony  on  the  part  of  the 
plaintiff,)  that  such  was  the  fact.  In  a  subsequent  stage  of  the  case,  and 
on  the  part  of  the  defendant,  it  may  be,  that  the  proof  under  the  plead- 
ings showed  that  the  testimony  could  not  have  l3een  material ;  for  it  is 
plain,  that  the  case  before  the  Justice,  from  the  statement  in  the  declara- 
tion, was  in  the  right  of  Dillard  alone,  while  the  proof  given,  applied  to 
a  defence  which  could  only  be  legally  set  up  against  Dillard  &  Dalrymple, 
or  Dalrymple,  as  survivor  of  the  firm.  This  was,  however,  to  be  con- 
sidered by  the  jury  ;  and  the  defendant  had,  therefore,  the  right  to  have 
*tliem  instructed,  that  if  they  believed  the  fact  to  be  that  the  testi-  r^.191 
mony  given  by  the  plaintiff,  and  to  which  the  defendant's  words  ^ 
referred,  was  immaterial,  that  then  they  could  not  be  regarded  as  legal 
slander.  In  Christie  vs  Coivell,  14  Petersdf.  Abr.  mnrg.  p.  083,  the 
words  were,  "he  is  a  thief,  for  he  has  stolen  my  beer."  "  It  appeared  that 
the  defendant  was  a  brewer,  and  that  the  plaintiff"  had  lived  with  him  as  a 
servant,  in  the  course  of  which  service  he  sold  beer  to  different  customers 
of  the  defendant,  and  received  the  money  for  the  same,  for  which  he  had 
not  duly  accounted.  Lord  Kenyon  directed  the  jury  to  consider  whether 
these  words  were  spoken  in  reference  to  the  money  received  and  unac- 
counted for  by  the  plaintiff,  or  whether  the  defendant  meant  that  the 
plaintiff  had  actually  stolen  beer;  for  if  they  referred  to  the  money  unac- 
counted for,  that  being  a  mere  breach  of  contract,  the  word,  thief,  would 
not  make  it  actionable."  That  case,  perhaps,  goes  beyond  what  I  think 
the  true  rule  as  to  words,  in  themselves,  imputing  a  crime.  For  in  such 
a  case,  there  must  be  something  to  qualify  the  legal  sense  of  the  woi'ds 
attending  their  publication  Yet,  where  the  words,  as  in  this  case, 
depend  upon  something  extrinsic  to  make  them  slanderous,  it  furnishes 
the  true  and  proper  rule;  for,  in  such  a  case,  it  is  for  the  jury  to  say, 
whether  the  words  applied  to  immaterial  testimonj',  and  if  they  did,  they 
should  have  been  told,  as  Lord  Kenyon  told  the  jury,  in  Christie  vs. 
Cowcll,  that  they  were  not  actionable.  This  instruction  the  presiding 
Judge  refused  to  give,  supposing  that  under  the  pleading,  the  question, 
whether  the  testimony  given  by  the  plaintiff  before  the  Justice,  was 
innuaterial,  could  not  arise.  In  this  he  was  clearly  mistaken  ;  for  the 
question  arose  on  the  proof,  not  on  the  pleading.     And,  as  in  every  other 


426  COLUMBIA,    DECEMBER,    1841.      VOL.  IL  [*121 

case  going  to  a  jury,  the  parties  are  entitled  to  have  them  fully  instructed 
upon'the^'law  arising  out  of  the  facts  proved.  This  was  not  done,  and, 
as  a  matter  of  right,  the  defendant  is  entitled  to  a  new  trial,  the  motion 
for  which  is,  therefore,  granted, 

Richardson,  Evans,  Earle  and, Butler,  JJ.,  concurred. 


*122]  *Geofrey  Palmer  vs.  M.  B.  Bogan. 

Decided  December,  1839.     Opinion  by  O'Neall,  J. 

The  ground  in  arrest  of  judgment  cannot  avail  the  defendant,  for  it  was  ad- 
mitted on  the  argument,  that  two  of  the  counts  in  the  declaration  were,  beyond 
all  doubt,  good.(«)  Where  some  of  the  counts  are  good,  and  some  bad,  the  verdict 
is  referred  to,  and  stands  upon  the  good  counts.     Neall  vs.  Lewis,  2  Bay.  204. 

The  ground  for  nonsuit  is  equally  unavailing.  The  defendant,  according  to 
some  of  the  proof,  said  that  "the  plaintitf  swore  a  lie"  in  the  case  of  Boc/an  vs. 
Sumner.  To  one  of  the  witnesses  he  said  this  was  done  to  injure  him.  To  others 
he  pointed  to  the  particular  evidence,  the  difl'erence  between  him  and  Grice,  in 
their  testimony  in  the  same  case.  In  more  than  one  of  these  conversations,  he 
said  Herndon  said,  in  open  Court,  Grice  or  Palmer  swore  a  lie,  and  there,  point- 
ing to  Palmer,  is  the  scoundrel.  The  proof  was  clear,  that  Palmer  was  ex- 
amined as  a  witness  for  the  defendant,  Sumner,  in  a  case  in  the  Court  of  Com- 
mon Pleas  for  Union  district,  between  M.  B.  Bogan,  plaintilT,  and  Mill  Sumner, 
defendant.  On  this  testimony,  I  refused  to  nonsuit  the  plaintiff,  and  I  still 
think  that  I  was  right,  and  in  that  opinion  my  brethren  concur.  Let  it  be  con- 
ceded, that  in  the  declaration  should  be  stated,  not  only  the  colloquium  about 
the  suit,  aud  that  the  plaintiff  was  examined  as  a  witness,  and  about  his  evi- 
dence given  on  the  trial,  but  that  it  should  also  be  alleged,  that  such  evidence 
was  on  a  point  material  to  the  issue,  and  that  the  defendant,  speaking  of  and 
concerning  it,  uttered  and  published  the  words.  All  this  is  done  in  the  decla- 
ration, and  th(>  only  question  is,  was  the  materiality  shown  ?  We  all  think  it 
was  abundantly  shown  by  the  facts,  1st ;  that  the  witness  was  examined  in 
defence  of  a  case,  in  the  Court  of  Common  Pleas :  2d,  that  the  defendant  said 
the  testimony  was  falsely  given  to  injure  him.  3d,  that  the  defendant,  here, 
^the  iilaiutiff  here,)  contradicted  the  plaintiff's  testimony  by  examining  Grice. 
4tb,  tliat  a  lawyer,  learned  in  tlie  law,  (according  to  the  defendant's  account,) 
should  have  conuncmted  on  the  difference  between  Grice's  and  Palmer's  testi- 
mony, and  used  the  harsh  expression  that  Grice  or  Palmer  swore  a  lie,  and 
there,  pointing  to  Palmer,  is  the  scoundrel.  These  four  circumstances  abun- 
dantly jtrovo  the  materiality  of  the  alleged  false  swearing,  which  is  all  that  the 
defendant's  coiinstd  demanded,  aud  I  am  not  disposed  to  follow  him  au  inch 
Iwyond  the  jioint  necessary  to  be  decided.  The  Court  are  satisfied  with  the 
cliarge  to  tlie  jury.  We  are  also  satisfied  that  the  Judge  below  exeVcised  a 
proper  discretion,  in  excusing  the  foreman  of  the  jury,  Mr.  Sims,  and  in  order- 
ing the  case  f)n.  'J'lie  m.otions  in  arrest  of  judgment,  for  nonsuit  and  new  trial, 
are  disnuHsed. 

Ga.ntt,  Evaxs,  Eari,k,  and  Bi'tlkk,  .JJ.,  concurred. 

(^0  3  Strob.  341  ;  2  Hill.  054.     An. 
Bee  next  preceding  case.     An. 


CASES  AT   LAW 

ARGUED  km  DETERMIKED   IN  THE 

COURT    OF    ERRORS    OF    SOUTH  CAROLINA, 

Columbb,  December,  1841. 


PRESENT 


HON.  DAVID  JOHNSON,  Chaxcellor. 

"  WILLIAM  HARPER,  Chancellor. 

"  JOB  JOHNSTON,  Chancellor. 

"  BENJAMIN  F.   DUNKIN,  Chancellor. 

"  JOHN  S.  RICHARDSON,  Law  Judge. 

"  RICHARD  GANTT,    Law  Judge. 

"  JOHN  BELTON  O'NEALL,  Law  Judge. 

"  JOSIAH   J.  EVANS,  Law  Judge. 

"  BAYLIS  J.  EARLE,  Law  Judge. 

"  ANDREW  PICKENS  BUTLER,  Law  Judge. 


John  A.  Donald,  Administrator  de  bonis  non  of  Robert  Gray  vs. 

Charles  Dendy. 

1.  Where  a  testator,  in  his  last  will,  used  the  term,  (in  relation  to  a  bequest  of 
slaves,)  "  I  will  and  bequeath  Sarah,  and  all  her  increase'' — ^the  term,  all  her 
increase,  was  held  to  refer  only  to  such  children  of  the  slave  Sarah,  as  were 
born  after  the  making  of  the  will. 

2.  Parol  evidence  is  only  admissible  to  explain  a  latent  ambiguity.  If  a  testator 
devises  his  estate  to  a  person,  or  class  of  persons,  )jy  name  or  description,  and 
it  should  turn  out  that  there  is  no  person  of  the  name,  or  that  will  answer  the 
description,  parol  testimony  may  be  introduced,  to  ex2ilnin  to  whom  the  testa- 
tor intended  the  be(Hiest  to  be  applieil  ;  for  there  is  a  latent  ambiguity,  which, 
if  unexplained,  would  render  the  will  inoperative.  Whatever  is  necessary  to 
explain  the  ambiguity  of  the  legatee,  is  equally  applicable  to  an  ambiguity  in 
the  description  of  the  legacy  itself. 

Tried  at  Abbeville,  March,  1840,  before  Butler,  J.,  whose  report  of  the 

case  is  as  follows  : 

Trover  for  uegroes,  Sarah  Ann  aud  her  infant  child. 
These  negroes  were  sold  at  sheriff's  sale,  under  Ji.  fa.  against  West 
Donald,  and  bought  by  defendant.     Sarah  Ann  is  daughter  of  Annis,  the 


428  COLUMBIA,    DECEMBER,    1841.      VOL.  II.  [*123 

daughter  of  a  necrro  woman  by  the  name  of  Sary.  The  right  to  Sarah 
Ann  depends  on  the  rijrht  to  Annis,  and,  as  it  is  contended,  the  right  to 
Annis  depends  on  the  history  and  title  to  Sary  ;  so  that  it  will  be  neces- 
sary to  go  far  back  to  get  at  the  history  and  true  title  to  Sary. 
*i9n  *Robert  Gray,  the  alleged  intestate,  married  ahoul  '96,  or  per- 
-l  haps  before,  Nancy,  the  daughter  of  Alexander  Donald.  At  the 
time  of  the  marriage,  Alexander  Donald  lived  in  Chester,  and  Robert 
Gray  in  Fairfield.  After  the  marriage,  Alexander  Donald  sent  Sary  to 
his  daughter  and  son-in-law,  who  shortly  aftericards,  removed  to  Abbe- 
ville, bringing  with  them  Sary.  Xot  long  after  the  removal,  and  perhaps 
in  connexion  with  it,  Alexander  Donald  moved  to  Abbeville,  and  lived 
there  till  his  death,  not  far  from  Robert  and  Nancy  Gray.  I^efore  A. 
Donald's  death,  which  happened  in  1803,  Sarah  had  a  child,  called 
Annis.  Whilst  the  parties  lived  in  Fairfield,  Sary  had  been  spoken  of 
in  the  family,  as  "entailed"  property,  and  not  subject  to  the  debts  of 
Robert  Gray,  and  she  was  so  spoken  of  in  Abbeville,  before  and  after 
Alexander  Donald's  death. 

Alexander  Donald  left  a  will,  by  which  he  appointed  John  Donald,  his 
son,  and  Andrew  Gray,  his  son-in-law,  his  executors.  Among  other 
clauses  in  the  will,  is  one  to  this  purport — giving  to  his  son-in-law  and 
daughter,  Robert  Gray  and  Nancy,  during  their  joint  lives,  and  to  the 
survivor  of  them,  and  at  the  death  of  the  survivor,  to  the  children  of  the 
marriage,  three  negroes,  Peter,  Little  Frank,  "  Sary,  and  all  her  in- 
crease." At  the  time  Sary  and  Annis,  her  child,  were  in  the  possession 
of  Robert  and  Nancy  ;  Frank  and  Peter  went  into  their  possession  under 
the  will ;   Sary  (not  Annis)  being  mentioned  in  the  same  clause. 

Robert  Gray  died  in  1811,  leaving  a  widow  and  three  children,  viz.  : 
!Mary  Ann,  who  married  West  Donald,  Elizabeth,  who  married  James 
Donald,  and  a  son,  Robert  Douglass  Gray.  His  widow,  Nancy,  took 
out  letters  of  administration,  and  had  the  personal  estate  appraised  ;  two 
of  the  appraisers  were  John  Donald  and  Andrew  Gray.  S'O-y  and  Annis 
were  appraised,  and  returned  in  the  inventory  as  the  property  of  the 
intestate,  but  were  never  sold  for  distribution  The  widow  held  tJiem  till 
she  intermarried  with  Charles  Thompson,  some  time  in  1812.  After  the 
marriage,  she  moved,  with  her  husband  to  Newberry,  taking  with  her  the 
negroes,  Frank,  Peter,  Sary  and  Annis.  Her  husband,  Thompson,  died 
in  Newberry,  and  she  returned  to  Abbeville,  bringing  back  the  aforesaid 
*12"1  *"^f^'"o^^-  While  she  was  widow  of  Thompson,  she  sold  Sary 
-^  and  some  of  her  children,  Edy,  Stephen  and  perhaps  wnother ; 
she  retained  Annis  till  her  death. 

Ill  1823,  Nancy  married  Andrew  Paul,  and  had  the  negroes  Annis  and 
others;  Paul  died  in  January,  1825.  After  his  death,  by  some  arrange- 
ment wit!)  Hill,  the  executor  of  Paul,  the  negroes  were  delivered  up  to 
widow,  iis  there  was  some  legal  question  about  their  title;  the  widow 
also  took  sonic,  portion  of  Paul's  estate,  under  the  same  arrrangemcnt. 
Some  time  in  the  summer  of  the  same  year,  Mrs  Paul  died  intestate, 
leaving  Klizaljclh,  who  married  James  Donald,  and  Robert  Douglass 
(J ray,  her  children,  surviving  her.  Mary  Ann,  who  had  married  West 
Donald,  died  in  18-2(I,  leaving  her  husband  and  several  children  surviving 
licr ;  some  of  the  children  are  y<'t  under  age. 

James  Donald  administered  on  the  estate  of  Nancy  Paul,  and  a  division 


*12o]  DONALD    ^-5.    DENDY.  IN  ERRORS.  429 

of  her  estate  was  made  among  ber  cliildren  and  their  representatives,  or 
supposed  representatives.  Sealy  AValker  was  guardian  of  Robert 
Douglass  Gray,  then  under  age,  and  received  the  share  assigned  to  him. 
James  Donald  received  his  wife's  sliare  ;  West  Donald  was  present,  and 
received  a  part,  either  for  himself,  or  for  his  children,  lie  received 
An7iis  and  Sarah  Ann  ;  they  were  sold  oflerivards  for  his  debts.  He 
died  in  1834,  and  one  of  his  sons,  John  A.  Donald,  administered  on  the 
estate  of  Robert  Gray,  deceased,  and  asserted  his  right  as  adniinintrator 
de  bonifi  non,  to  the  negroes  in  question,  upon  the  ground  that  they  had 
never  been  legally  disposed  of  in  a  due  and  legal  course  of  administration. 
He  now  contends,  that  they  are  to  be  regarded  as  a  part  of  the  estate  of 
Robert  Gray,  which,  as  it  appeared  by  the  evidence,  has  no  creditors. 

The  various  grounds  of  objection  to  the  recovery  of  plaintifi",  were  taken 
below,  that  arc  now  taken  in  appeal. 

Tlie  first  question  in  point  of  order  was,  whether  Annis  and  her  child 
passed  under  the  will  of  Alexander  Donald  ;  if  so,  the  plaintiff  had  no 
interest.  My  own  individual  opinion  was,  that  Annis  had  passed  under 
the  will  under  the  terms  of  "Saraband  all  ber  increase."  Tlie  Court 
of  'Equity  had  othe7-tvise  determined,  and  I  did  not  feel  at  liberty  to 
question  that  decision 

*The  property  was  still  in  specie,  and  could  be  identified  as  rji^iQ/- 
part  of  the  estate  of  Robert  Gray,  it  never  having  been  converted  '- 
into  any  other  form  by  Nancy,  the  administratrix;  nor  did  I  think  the 
marriage  of  Nancy  could  operate  as  a  legal  gift  and  transfer  to  the  hu.-;- 
band.  She  took  the  property  to  have  it  administered  and  disposed  of 
according  to  law,  and  not  having  done  so,  it  was  suliject  to  administra- 
tion by  the  administrator  de  bonis  non.  If  her  letters  had  been  revoked 
during  ber  life  time,  this  would  have  been  unquestionable. 

I  left  it  to  the  jury  to  determine  whether  Robert  Gray  took  Annis, 
subject  to  the  future  control  of  Alexander  Donald.  If  so,  I  thought  the 
property  ought  to  go  as  Robert  acknowledged  it  should  go.  The  evi- 
dence on  this  point  was  not  satisfactory,  and  in  candor,  I  think  the  case 
was  decided  according  to  my  notions  of  the  law  ;  and  if  I  was  wrung  in 
any  point,  I  was  also  wrong  in  this,  for  I  rather  assumed  that  the  pro- 
perty was  part  of  the  estate  of  Robert  Gray,  fairly  subject  to  the  claim 
of  bis  administrator,  and  that  he  should  recover  the  value  of  the  negroes. 

My  judgment  would  modify  somewhat  the  propositions  made  by 
defendant,  but  for  safety  to  bis  rights,  I  admit  that  I  overruled  all  bis 
objections. 

GROUNDS   OF   APPE.iL. 

The  dofendant  appeals,  and  moves  for  a  new  trial,  because  of  misdirection  of 
the  presiding  Judge,  in  overruling  the  following  points,  which  were  made  by  the 
defendant  on  the  trial  below,  and  whicli  will  be  again  urged  in  the  Court  of 
Appeals,  viz. : 

1.  That  after  collection  of  all  the  assets,  and  payment  of  all  the  debts  of  an 
intestate,  the  legal  estate  in  the  residue,  in  the  hands  of  an  adniinistrutri.x,  upon 
her  death,  goes  to  her  representative,  and  nut  to  un  administrator  de  l.ouis  non 
of  the  intestate  ;  and  the  remedy  to  compel  distribution  aud  account  is  at  equity, 
and  at  the  instance  of  the  distributees,  and  not  at  law,  at  the  suit  of  an 
administrator  de  bonis  non. 

2.  That  the  legal  estate  in  the  chattels  of  an  inte.<tate,  reduced  by  the  hus- 


430  COLUMBIA,   DECEMBER,    1.841.      VOL.  II.  [*126 

band  of  an  administratrix  to  his  possession,  *vests  in  such  husband,  and 
^-  'J   will  not  upon  his  death,  survive  to  the  wile,  administratrix. 
3    That  Annis,  mother  of  the  slaves  in  question,  is  included  in  the  disposition 
made  by  the  will  of  Alexander  Donald,  of  "  Sarah  and  all  her  increase." 

4.  That  it  was  a  question  for  the  jury  upon  the  evidence  offered,  whether 
the  terms  of  said  will  did  not  include  Annis. 

5.  That  independent  of  the  will  aforesaid,  the  acknowledgments  of  Robert 
Gray,  that  Sarah  was  "entailed,"  his  long  continued  possession,  in  conformity 
with  such  acknowledgments,  and  the  possession  of  his  widow,  with  assertions 
of  ri"-ht  on  her  part,  and  acquiescence  on  the  part  of  the  distributees  of  Robert 
Grav,  all  concurring  in  the  same  view  of  limited  rights  in  Robert  Gray,  afforded 
presumptions  sufficient  to  countervail  the  presumption  of  absolute  title  in 
Robert  Grav,  arising  fi'om  his  possession  only. 

6.  That  there  is  no  distinction  between  Sarah  and  her  chiklren,  all  of  whom 
were  born  after  she  went  into  the  possession  of  Robert  Gray ;  and  there  was 
error  in  directing  the  attention  of  the  jury  to  such  a  distinction. 

7.  'J'hat  the  acquiescence  of  West  Donald  and  his  wife,  and  of  James  Donald 
and  his  wife,  in  the  exclusive  enjoyment  by  the  widow  of  Robert  Gray,  of  all 
the  slaves  which  Robert  Gray  had  in  his  possession  at  his  death,  (if  it  does  not 
incontestably  establish  a  right  opposed  to  the  title  of  Robert  Gray,)  raises 
presumptions  of  assignments  and  arrangements  by  each  of  the  said  husbands, 
in  the  lifetime  of  his  wife  ;  and  the  subsequent  fair  distribution  into  three  parts, 
may  be  well  considered  as  conformable  to  these  assignments  and  arrangements, 
so  as  to  bar  even  all  equity  in  the  children  of  West  Donald. 

8.  That  the  right  of  West  Donald,  being  vested  in  the  defendant  by  purchase, 
end  the  rights  of  James  Donald  and  Douglass  Gray,  being  vested  in  him  by 
Statute  of  Limitations,  the  plaintiff,  at  most,  could  recover  only  two-ninths  of 
the  value  of  the  slaves. 

A  surrLEMENTAL  STATEMENT,  whicli  varlcs  tliose  statements  of  the 
report  that  arc  italicized,  and  adds  to  the  report. 

*T>'^  1  *Robert  Gray  and  Nancy  were  married  before  the  period  to  which  the  memory 
-*  of  any  witness  extended;  supposed  soon  after  therevolutionaiywar ;  one  of 
the  witnesses  remembered  Sarah  as  far  back  as  '96  ;  she  was  tlieuayoung  woman, 
without  a  cliild,  in  possession  of  Robert  Gray,  in  Fairfield,  said  to  have  come  from 
Alexander  Donald,  but  how,  or  when,  unknown  to  the  witness.  She  had  one 
child,  Annis,  in  Fairfield,  prior  to  the  removal  in  '98  ;  three  other  cliildren,  Ej^s&x, 
VAy,  and  Stephen,  were  born  in  Abbeville,  before  the  date  of  Alexander  Donald's 
^v^ll,  in  IW.i,  and  one  child,  Nancy,  afterwards.  All  of  these  children  continually 
remained  witli  Robert  Gray  until  his  death,  except  Edy,  whom  he  sent  to  his  son- 
in-law.  West  Donald,  soon  after  West's  marriage,  whicli  took  place  the  year  after 
Alexander  Donald  died. 

Rolici-t  Gray  said,  and  Nancy  Gray  said,  and  it  was  talked  of  in  the  family,  both 
in  Fairfield  and  in  Abbeville,  before  and  aftor  Sarah  had  children,  that  Sarah  was 
"entailt'd;"  and  after  the  death  of  Robert  Gray,  Nancy  always  claimed  the 
negroes  in  her  possession,  as  hers  for  her  life,  independent  of  all  right  in  R.  (Jray's 
estate.  In  speaking  of  Sarah  being  "entailed,"  one  witness  supposed  that  refer- 
ence was  had  to  a  former  will  of  Alexandtsr  Donald's  ;  and  another  witness  either 
supposed  the  same,  or  did  not  understand  by  wliat  instrument  she  was  "  entailed." 

Administration  of  tlie  estate  of  Robert  Gray  was  granted  to  Nancy,  1st  April, 
ISll,  an>l  (le  bonis  non  to  tlie  plaintilf,  in  .July,  1839.  Administration  of  the  estate 
(»f  Nancy  wJis  granted  in  1825,  and  the  division  took  place  the  same  year ;  but 
whether  it  was  of  her  estate,  or  under  the  will,  or  some  agreement,  did  not  appear. 
In  tli<>  inventory  of  her  estate,  tlie  negroes  are  not  included. 

Little  Frank,  I'eter,  Edy,  lilssox,  Stephen,  and  Nancy,  are  included  in  the  inven- 
tory of  11.  Gray's  estate,  as  well  as  Sarah  and  Annis  ;  the  inventory  signed  by  the 
appraisers,  and  not  by  the  administratrix.  And  (except  Edy,  claimed  by  West 
Doualil,  and  Sarah  and  Stephen,  sold  Ijy  Mrs.  Thomson,)  ail  of  these  negroes, 


1'2S] 


DONALD    ?•.<?.    DENDT.  IX  ERRORS.  431 


with  the  issue  of  the  females,  attendiiig  Nancy  in  all  her  various  changes,  and 
were  divided  after  her  death. 

*Nancy  took  no  part  of  Paul's  estate,  except  the  negroes  she  brought  |-*i29 
with  her. 

The  youngest  child  of  Mary  Ann  Donald  is  now  about  21  years  of  age. 

The  sale  to  defendant,  was  in  February,  ]829. 

The  Judge  held,  that  the  doctrine  of  election,  which  the  defendant's  counsel 
endeavored  to  apply  to  tlie  case,  was  unnecessary  to  be  considered,  as  R.  Gray, 
by  his  acknowledgments,  showed  that  the  title  of  Sarah  was  not  vested  in  him, 
so  as  to  be  exempt  from  the  distribution  made  by  Alexander  Donald's  will ;  and 
then  adverting  to  Annis,  he  loft  it  as  a  question  for  the  jury,  whether  R.  Gray 
took  Annis,  subject  to  the  future  control  of  Alexander  Donald. 

James  Donald  and  Robert  Douglass  Gray,  have  both  left  the  State,  with  the 
negroes  assigned  to  them  in  the  division.  The  latter  went  in  February  last,  and 
before  he  went,  gave  a  bond,  without  security,  binding  himself  to  bring  back  the 
negroes,  if  plaintiff  should  recover. 

The  equity  proceedings  in  the  case  of  John  A.  Donald,  administrator  of  Mary 
Ann  Donald,^  and  others,  against  Charles  Dendy  and  others,  were  not  in  e\'idence, 
although  the  reported  decree  in  that  case  was  referred  to  as  authority. 

Evidence  offered  to  aid  in  the  construction  of  the  terms  ''all  her  increase,^'  in  Alexan- 
der Donald^ s  will. 

In  the  2d  disposing  clause  :  Jenny  had  no  children  in  1S03. 

In  the  3d  disposing  clause  :  Anuiky  had  children,  not  bequeathed,  except  as 
"  increase,"  which  have  gone  with  her. 

In  the  3d  disposing  clause  :  Linda  had  no  children  then  bora. 

In  the  4th  disposing  clause:  No  child  of  Sarah  bequeathed,  except  as  "in- 
crease ;"  she  had  four  then. 

In  the  5th  disposing  clause :  Lusa  had  children  not  bequeathed,  except  as 
children. 

In  the  7th  disposing  clause  :  Chloe  had  these  children,  Henry,  Isaac,  Linda, 
Little  Frank,  and  Little  Ann,  all  bequeathed  in  various  jiarts  of  the  will. 

In  the  bth  disposing  clause  :  Little  Ami  had  then  no  children. 

The  teiTU  "increase,"  nowhere  added  to  any  female  when  it  could  embrace  only 
future  increase. 

No  proof  of  any  slave  of  testator  not  bequeathed  specially  in  the  will,  besides 
those  which  it  is  contended  were  included  under  the  teiTus  "  ail  her  uicrease,"  or 
her  "children."  Specilic  bequests  made  of  tools,  and  beds,  a  mare,  a  still,  and 
part  of  a  cotton  gm^ 

*  Curia,  per  Dunkix,  C.  In  Seihles  \s.  Whatley,  2  Hill  C.  r:;<23Q 
R.  GOT,  the  bequest  was  of  "  Nance  and  her  increase."  The  L 
Chancellor  who  heard  the  cause  on  the  circuit  says,  "  the  words  used  do 
not  limit  the  increase  criven  with  Nance  to  future  increase.  Increase,  as 
a  g-eiieral  ,term,  will,  I  siippose,  include  past  increase  as  well  as  future, 
and  extend  to  all  the  children  of  the  slave"  13ut  in  revising  this  opin- 
ion, the  Court  of  Appeals  dilTered  with  the  Chancellor,  and  say  that 
"  when  the  term  '  increase  of  slaves'  is  used,  it  is  the  common  under- 
standing of  men,  that  it  refers  to  increase  thereafter  to  be  produced,  and 
that  they  could  not  in  any  way  construe  them  to  relate  to  children  born 
before  the  making  of  the  will."  It  is  not,  perhaps,  so  important  what 
the  rule  is,  as  that  it  should  be  fixed.  Since  the  case  of  Setblcs  vs. 
Whalleij,  the  term  "  increase,"  when  used  in  a  will  in  reference  to  slaves, 
must,  as  a  general  rule,  be  construed  to  include  after-born  children  only. 
It  is  supposed  that  the  term  "all  her  increase,"  may  make  a  diUerence. 
But  supposing  increase  to  have  the  established  meaning  of  after-born 
children,  all,  is   merely  an   expletive,  and   includes  all   her  after-bom 


432  COLUMBIA,    DECEMBER,    1841.       70L.  II.  [*130 

children.  Alexander  Donald,  the  testator,  died  about  1803,  and  Robert 
Gray,  the  plaintiff's  intestate,  in  1811.  Much  evidence  was  given  as  to 
Gray's  declarations,  the  condition  of  the  parlies,  &c.(o)  But  it  is  very 
questionable,  whether  such  testimony  is  admissible  under  the  circumstan- 
ces of  this  case.  In  Wi-ih  vs.  Keishaw,  reported  in  a  note  to  Shearman 
vs.  Angel,  1  Bail.  Eq.  R.  352,  a  question  arose  as  to  the  admissibility 
of  parol  evidence,  to  explain  the  meaning  of  the  term  grand-children. 
"There  maybe  a  difference  of  opinion,"  says  the  Court,  "as  to  the 
application  of  the  rule  on  this  subject;  but  there  can  be  only  one 
opinion  as  to  the  rule  itself.  It  is  very  certain,  that  parol  evidence  is 
only  admissible  in  such  cases,  to  explain  a  latent  ambiguity.  If  a  testa- 
tor devises  his  estate  to  a  person  or  class  of  persons,  by  name  or  descrip- 
tion, and  it  turns  out  that  there  is  no  one  to  whom  the  description 
properly  applies,  parol  evidence  may  be  admissible  to  show  to  whom  the 
testator  intended  it  to  be  applied  ;  for  there  is  a  latent  ambiguity,  that 
is,  an  ambiguity  ascertained  by  extrinsic  proof,  and  which  may 
*  1  ^1 1  *^1^6refore  be  explained  by  proof  of  the  same  sort ;  and  which,  if 
-•  not  explained,  would  render  the  will  inoperative.  But  if  there 
are  persons  answering  the  description,  aiid  evidence  is  offered  to  show 
that  the  testator  intended  to  include  other  persons,  not  coming  within 
the  description  contained  in  the  will,  such  evidence  cannot  be  received, 
for  there  is  no  ambiguity  to  be  explained,  and  the  evidence  is,  in  fact, 
offered  for  the  purpose  of  altering  the  terms  of  the  will,  although  there  is 
nothing  doubtful,  either  as  to  its  construction  or  application."  What  is 
here  said  of  an  ambiguity  as  to  the  legatee,  is  equally  applicable  to  an 
ambiguity  in  the  description  of  the  legacy  itself.  The  testator  bequeaths 
'•  Sary  and  all  her  increase."  By  the  rule  of  Seibles  vs.  Whatley 
"  increase"  means  after-born  children.  It  is  necessary  always  to  resort  to 
parol  evidence,  in  order  to  ascertain  to  whom,  or  to  what  tlie  description 
applies.  It  is  not  shown  or  suggested  that  t^ary,  from  her  age  or  from 
any  other  cause,  might  not  have  had  after-born  children.  On  the  con- 
trary, it  is  in  proof  that  she  had  issue,  born  after  the  date  of  the  will,  and 
after  the  death  of  the  testator.  There  is  then,  no  such  latent  ambiguity 
as  would  warrant  the  admission  of  parol  testimony,  in  order  to  give  a 
diil'erent  meaning  to  the  terms,  from  that  which  the  Court  has  heretofore 
given.  If  the  intention  of  the  testator  was  different,  such  intention  must 
appear  by  necessary  implication,  on  the  will  itself.  In  Shearman  vs. 
AiKjel,  already  cited,  it  is  said  to  be  the  rule,  that  if  there  be  a  devise 
'■to  children,"  this  imports  legitimate  children  ;  and  that  "if  the  words 
are  to  be  explained  or  enlarged,  so  as  to  include  the  illegitimate,  it  must 
he  done  by  clear  exjjrcssion,  or  necessary  implication,  on  the  face  of  the 
will  itself."  Giving  to  the  defendant  the  full  beiieUt  of  this  principle,  the 
Court  have  examined  the  several  clauses  of  the  testator's  will.  Nothing 
morels  said  in  relation  to  this  particular  bequest;  and  although  plausible 
orgumeiits  were  certainly  adduced,  from  the  language  of  other  bequests, 
as  con>|.arcd  with  the  situation  of  Ihe  i)roi)erty,  it  seems  quite  too  strong 
an  inference  to  say,  that  the  intention  of  the  testator  to  include  Annis  in 
the  Ijccjucst  of  Sary  and  all  her  increase,  appears  "by  clear  ex}n-ession, 

(a)  .Scc!  Roxhnroiujh  vs.  llcmphUl,  r>  Rich.  Eq.  105  ;  4  Strob.  L.  212  ;  Semh.  Cont. 
McMul.  Eq.  451  ;  1  llidi.  Eq.  3t)6.     An. 


*131]      DONALD  VS,    DENDT.     IN  ERRORS.        433 

or  necessary  implication,  on  the  *face  of  the  will  itself."  But  in  r^ion 
the  case  oi  Donald  vs.  WCord  &  Bendy,  Rice's  Eq.  R.  330,  the  L  ^^ 
Court  of  Appeals  in  Equity,  giving  construction  to  the  same  clause  of 
this  will,  held,  that  the  terms  "  all  her  increase,"  passed  only  the  after-born 
children,  and  that  it  was  not  distinguishable  in  principle,  from  Seibles 
vs.  Whatley.  That  decision  is  not  conclusive  on  these  parties,  nor  in 
this  Court.  But  if  the  correctness  of  that  judgment  were  more  doubtful, 
the  Court  would  regard  it  as  due  to  the  satisfactory  administration  of 
justice,  that  the  determination  should  not  be  disturbed.  The  motion  is 
dismissed. 

JonNsoN,  C,  and  RicHAEDsoN,  O'Neall,  Evans,  and  Gantt,  JJ., 
concurred. 

Wardlav)  and  Perrin,  for  the  motion.     Burt,  contra. 

As  to  issue,  see  Tidynan  vs.  Rose,  Rich.  Eq.  Cases,  299. 


ToL.  I.~29 


CASES    AT    LAW 

ARGUED  ASD  DETERMINED  IN  THE 

LAW  COURT  OF  APPEALS  OF  SOUTH  CAROLINA, 

Charleston,  debruarn,  1842. 


JUSTICES   PRESENT. 

HON.  JOHN   S.  RICHARDSON,  HON.  ANDREW  PICKENS  BUTLER. 

"      JOHN   BOLTON   O'NEALL,  "      DAVID  LEWIS  WARDLAW. 

"      JOSIAH  J.  EVANS, 

Hon.  Batlis  J.  Eakle  was  absent  during  this  term,  from  indisposition. 


Isaac  Harris  vs.  R.  &.  J.  Caldwell. 

Where  a  shop-keeper,  himself,  sold  and  delivered  goods  to  a  party,  and  during 
the  same  day,  the  entries  were  made  by  another  person,  who  occasionally  acted 
as  clerk  for  him,  it  was  held,  that  the  book  was  no  evidence  of  the  debt,  and 
tliat  the  evidence  was  inadmissible.      Vide  Hurts  vs.  Neujville,  in  a  note.      S.  P. 

Before  Earle,  J.,  at  Charleston,  May  Term,  1841. 

Assumpsit  on  an  open  account  for  goods  sold  and  delivered.  The 
plaintiff,  a  shop-keeper,  ])roduced  his  book,  and  proved  that  the  goods 
*1341  "^''^  ^  ^  delivered  by  him,  *but  that  the  entries  were  made, 
^  under  his  direction,  on  the  same  day,  by  another  person,  whom  he 
occasionally  employed  for  that  purpose,  but  who  was  not  present  when 
the  goods  were  sold  and  delivered. 

Tlie  person  who  made  the  entries  was  also  sworn,  and  proved  that 
they  were  made  by  him,  under  the  direction  of  the  plaintiff.  His  Honor 
ruled  that  the  book  was  no  evidence  of  the  debt,  and  the  plaiutilf  was 
nonsuited. 

lie  now  pivoa  notice  that  lie  will  appeal,  and  move  to  set  aside  the  nonsuit 
on  tlu-  Kroiind,  that  tlie  book  was  us  good  evidence  as  if  the  pluiiitiir  had  made 
the  enlrii's  with  his  own  hioids. 

Mazurh;  fr,r  the  motion— cited  1  Brev.  Dig.  Act  1721,  p.  315,  (r()  and  said  :  is  it 
.^HHential  tliat  a  fihop-keeper  should  make  the  entries  with  his  own  hand  ?  1  Rice's 
Dig.  2tj4.  Tlie  wife  sold ;  entries  were  made  by  her  husband.  I'he  wife  ought  to 
liave  been  exaniined. 

(a)  7  Stat.  108,  ^  10.     See  1  Bay,  41.     P.  L.  IIG.     3  Stat.  799.     Index  Books. 


134] 


HARRIS   r.<?.    CALDWELL.  435 


Hicharrhon,  contra — contended  that  all  the  testimony  received  was  illegal.  He 
is  only  allowed  to  prove  his  entries.  The  entry  is  the  only  evidence  of  a  sale  and 
delivery. 

Curia,  per  O'Neall,  J.  In  this  case,  I  understand  from  the  Circuit 
Judge,  that  the  entries  were  not  made  at  the  time  when  the  goods  were 
delivered,  but  in  the  evening  of  tlie  same  day ;  and  that  they  were  not 
made  by  a  clerk,  but  by  a  friend,  who  performed  such  services  occasionally 
for  the  plaintiff.  These  facts  remove  all  difficulty  as  to  the  inadmissi- 
bility of  the  testimony,  and  reconcile  the  whole  Court  to  the  decision 
below.  But  a  majority  of  the  Court,  however,  taking  the  case  made  in 
the  report  merely,  are  satisfied  to  affirm  the  decision.  The  case,  as  made 
by  the  report,  is,  that  the  plaintiff's  book  was  produced,  in  which  was  an 
entry  in  the  handwriting  of  one  not  present  at  the  delivery  of  the  goods, 
and  the  plaintiff  would  have  proved  that  he  sold  and  delivered  the  goods, 
and  that  the  entry  was  afterwards  made  by  his  direction,  and  in  his 
presence.     The  question  is,  was  such  evidence  admissible  ? 

At  common  law,  originally  in  this  country,  as  well  as  in  England,  no 
one  would  have  contended  that  it  was.  The  decisions  under  7  Jac.  1,  c. 
12,  which  enacts  that  the  shop  *book  of  a  tradesman  shall  not  be  r-:(:i  o- 
evidence  after  a  year,  will  approach  nearer  to  the  question  now  L 
before  us,  than  any  to  which  we  can  refer  in  the  English  books.  In  con- 
struing that  statute,  it  would  seem,  by  implication,  that  within  the  year, 
the  book  would  be  in  itself  evidence.  Yet  the  Judges  of  England,  in  a 
variety  of  cases,  held  that  it  was  not  .so  without  some  circumstance  to 
make  it  so.  In  Buller's  N.  P.  282,  283,  a  very  good  summary  of  the 
cases  will  be  found,  from  which  it  will  be  seen,  that  in  no  instance  was 
the  plaintiff's  oath  resorted  to,  as  in  aid  of  the  entry.  Proof  of  the  entry 
by  the  clerk  making  it,  as  an  evidence  of  his  own  transactions,  or,  in 
the  event  of  his  death,  the  next  best  evidence,  proof  of  his  handwriting, 
was  always  necessary.  When  the  person  delivering  the  goods  did  not 
make  the  entry,  but  the  proof  was  that  it  was  the  usual  course  of  business, 
that  the  drayman  came  every  night  to  the  clerk  of  the  brew-house,  and, 
gave  him  an  account  of  the  beer  delivered  out,  which  he  set  down  in 
a  book,  to  which  the  drayman  set  his  hand,  and  that  the  drayman  was 
dead,  and  that  the  signature  was  his,  it  was  held  that  the  evidence  was 
admissible,  (a) 

In  a  subsequent  case,  when  an  entry  was  offered  to  prove  a  delivery,  a 
book  was  produced,  belonging  to  the  plaintiff's  cooper,  who  was  dead, 
but  his  name  was  subscribed  to  the  entry  of  several  articles  delivered  to 
the  defendant,  such  as  wine ;  and  it  was  proposed  to  prove  his  hand- 
writing. Lord  C.  J.  Raymond  excluded  the  testimony,  saying  it 
differed  from  Lord  Torrington's  case,  because  there  the  witness  saw  the 
drayman  sign  the  book  every  night.  These  cases  abundantly  show,  that 
the  fact  of  an  entry  made  by  one  not  delivering  the  goods,  never  was 
evidence,  unless  it  could  be  sustained  by  some  other  competent  common 
law  evidence  to  raise  the  belief  of  delivery,  such  as  the  ))roof  that  the 
drayman  every  night  signed  the  entries  made  on  his  rei)ort ;  that  he  was 
dead  ;  and  that  the  signature  to  the  entry  was  his.  Salk,  285,  Lord 
Torrington's  case. 

(rt)  Vide  2  Sp.  505  ;  4  Stroh.    393,  400  ;   C  Rich.  44S  ;   1    Sp.  287.       An. 


436  CHARLESTON,  FEBRUARY,  1842.      VOL.  II.  [*135 

What  difiference  has  been  made  by  the  adjudications  in  this  State  ?  In 
1786,  it  was  said  by  Bay,  (afterwards,  and  for  nearly  half  a  century, 
^.on-]  Judge  of  this  Court,)  in  arguing  *Fo8terys.  Sinkler,   1  Bay  40, 

-l  that  it  was  very  doubtful  whether  the  statute  of  7  Jac.  1,  chap. 
12,  ever  went  into  operation  in  this  State.  If  it  ever  did,  it  must  soon 
have  fallen  into  disuse,  or  have  become  obsolete.  For  the  county  and 
precinct  Court  Act,  passed  nine  years  after  this  and  other  English 
statutes  were  made  of  force  in  this  State,  in  its  tenth  clause,  recites  the 
law  as  understood  and  practiced  in  this  State,  to  be,  "  that  it  had  been 
before  allowed  for  law  in  the  then  Province,  that  books  of  account  shall 
be  alloiced  for  evidence,  the  plaintiff  sicearing  to  the  same."  The 
Court,  in  their  decision,  1  Bay,  45,  affirmed  this  view,  that  the  "  origi- 
nal book  of  a  merchant  or  shop-keeper,  is  good  evidence  to  go  to  the  jury 
on  the  plaintiff  swearing  to  the  same."  In  the  same  case,  Pendleton,  J., 
said  that  "  these  entries  were,  in  this  country,  prima  facie  evidence  of  a 
delivery."  If  that  case  stood  alone,  it  might  be  difficult  to  avoid  the 
conclu.<ion,  that  upon  the  plaintiff  swearing  that  the  book  offered  was  his 
original  book  of  entries,  it  would  be  evidence  to  go  to  the  jury  as  prima 
facie  evidence  of  delivery.  But  the  Court,  in  a  previous  case,  that  of 
Lynch  vs.  JIcHugo,  1  Bay,  33,  declared  that  the  rule  by  which  such 
evidence  was  received,  was  in  derogation  of  the  common  law,  and  ought 
to  be  strictly  guarded.  In  that  case,  a  "  post  entry"  was  held  to  be 
inadmissible,  and  that,  in  itself,  was,  perhaps,  enough  to  confine  the  proof 
to  every  entry,  and  to  make  it  necessary  that  each  should  be  proved  by 
the  person  making  it,  and  that  it  should  be  made  when  the  delivery  was 
made.  In  a  subsequent  case  Turner  vs.  Rogers  &  McBride,  1  Bay, 
480,  it  was  ruled,  that  an  entry  made  by  a  clerk,  must  be  proved  by  him, 
if  he  I)e  alive  and  within  the  State.  In  Lamb  vs.  HarCs  Administrator, 
1  Brcv.  Rep.  lOo,  the  third  resolution  of  the  Court  was,  thai  "the 
plaintiff /iwi.se// shall  be  allowed  to  prove  the  entries  made  in  his  own 
Ijonks  of  account,  when  such  evidence  is  the  best  that  the  nature  of  the 
case  admits  of,  as  when  the  entries  are  in  his  own  handwriting.''^ 
Putting  those  cases  together,  they  very  plainly  establish  the  rule  to  be, 
that  ichen  the  plaintiff]  a  shop-keeper,  sells  goods,  and  at  the  time  of 
delivery,  entered  the  goods  so  sold  in  his  book,  that  he  may  be  per- 
mitted, under  the  vsage  and  practice  in  this  State  to  prove  such  entry. 
nL^^-ji       ""It  will  be  observed,  on  analyzing  this  rule,  and  testing  it  by 

-■  the  decided  cases,  that  the  entry  is  evidence  of  delivery,  and  not 
the  oath  of  the  shopkeeper,  that  he  did  deliver.  In  Deas  vs.  Darby,  I 
X.  k  McC.  43G,  Mr.  Justice  Johnson  stated  the  rule  to  be,  that  book 
entries  prove  no  more  than  the  delivery  of  the  articles  charged.  The 
facts  that  he  did  deliver,  and  that  the  entry  was  made  by  himself  at  the 
time  of  delivery,  may  be  inquired  into  by  the  defendant,  if  he  chooses  to 
t-st  the  pro])riety  of  admitting  tlie  entry.  And  if  either  of  them  be  want- 
ing, the  entry  cannot  be  read.  It  may  be,  that  some  hardship  may  result, 
in  tlie  »p|»lic;ition  of  this  rule  to  the  business  of  life,  but  it  must  be  remem- 
bered, that  tlie  rule,  by  wiiioh  the  plaintiff  himself  is  allowed  to  prove  his 
own  entry,  was  engrafted  by  our  ancestors  on  this  branch  of  the  English 
common  law,  on  account  of  the  difficulty,  in  the  early  settlement  of  this 
country,  of  procuring  clerks   to  keep  books.     That  difficulty  has  long 


*137]  HURTZ    VS.    EX'ORS   OF    NEUFVILLE.  437 

since  been  removed,  and  there  is  now,  therefore,  no  reason  to  give  anr/, 
even  the  slightest  extension,  to  tlie  principle  settled  in  17^6.  But  I 
think  some  of  the  supposed  hardships  will  not  be  found  to  exist.  A  sale 
by  a  merchant,  and  an  entry  by  a  clerk,  or  reversing  it,  a  sale  by  a  clerk, 
and  an  entry  by  the  merchant,  at  the  instant  of  delivery,  will  be  always 
regarded  as  one  transaction,  and  the  proof  of  the  entry  by  the  clerk  or 
merchant,  under  such  circumstances,  will  be  all  that  will  ever  be  required. 

I  have  looked  into  the  case  of  Hurtz  vs.  The  Executors  of  Neufiulle  ; 
the  point  really  decided  there,  ivas  that  the  plaintiff,  who  made  an  entry 
of  goods  delivered  by  his  wife,  in  his  absence,  was  incompetent  to  prove 
it.     This  is  in  support  of  the  view  which  we  take  of  the  case  before  us. 

It  is  true,  the  Judge,  in  delivering  the  opinion,  does  intimate  that  the 
wife  might  have  been  called  in  aid  of  the  husband's  proof.  But  from  the 
manner  in  which  he  expresses  himself,  it  is  plain,  that  he  supposed  she 
could  prove  the  entry  made  by  her  husband,  in  the  same  manner  as  if  she 
had  made  it  herself.  It  is,  however,  clear,  that  in  this  he  was  mistaken  ; 
and  this  error  of  expression,  proceeding  from  one  of  so  much  ivisdoin 
discretion  and  experience,  is  to  be  ascribed  to  the  fact,  that  his 
♦mind  was  not  turned  to  the  distinction  now  made.  The  motion  r*ioo 
IS  dismissed.  '- 

RiCHAEDSON,  Evans,  Butler  and  Wardlaw,  JJ.,  concurred. 

Jacob  Hurtz  vs.  Executors  of  Neufville. 
Before  Huger,  J,,  at  Beaufort,  Fall  Term,  1827. 

This  action  was  brought  on  an  open  account.  The  plaintiff  vras  sworn,  and  pro- 
d\iced  his  book  of  original  entries.  This  book  was  objected  to.  It  was  not 
very  regularly  kept,  but  was  admitted.  The  articles  were  charged  by  the  plain- 
tiff, to  the  defendant's  testator.  The  witness  was  asked  if  they  were  delivered 
to  the  testator ;  he  said  no,  but  to  Kitty  Roulain,  by  his  order  ;  he  had  no  writ- 
ten order,  and  his  evidence  was  regarded  as  incompetent  to  prove  the  delivery. 
To  supply  this  deficiency,  the  plaintiff  produced  a  promissory  note,  drawn  by 
the  testator,  and  made  payable  to  the  plaintiff,  for  $200,  which  had  been  credited 
in  the  book,  and  afterwards  paid  by  the  agent  of  testator.  The  witness  was 
asked  if  he  had,  himself,  delivered  all  the  articles  to  Kitty  Roulain  ;  he  replied 
that  the  greater  part  had  been,  and  the  rest  were  delivered  by  his  wife,  in  his 
absence,  and  on  his  return  home  had  been  charged  by  him.  He  could  not 
designate  the  articles  delivered  by  himself. 

A  verdict  was  rendered  for  the  plaintiff.  The  defendant  appeals,  on  the  enclosed 
grounds. 

Additional  Report  oj  his  Honor. 

CoosAWHATCHiE,  Nov.   1827. 
Tried  before  his  Honor,  Judge  Hpger. 
Assumpsit  on  a  Merchant's  Account  vs.  the  defendant,  as  Executrix  of  Edward 
Neufville. 

At  the  trial,  the  plaintiff  produced  his  book,  which  was  objected  to,  as  being 
on  the  face  of  it,  not  a  regular  tradesman's  book,  in  which  entries  are  made,  in  a 
certain  order,  but  consisting  of  loose  memorandums,  relating  to  business.  His 
Honor  admitted  the  objections  were  strong  to  the  book,  but  received  it  in 
evidence. 

The  plaintiff  then  swore  to  the  entries.  The  defendant  asked  if  the  goods  were 
delivered  to  the  testator,  and  the  plaintiff  answered  no,  but  added  that  he 
delivered  them  to  Kitty  Roulain,  by  his  order.  To  the  latter  part  of  this 
answer,    the  defendant  objected,    on    the  ground,  that    the  authority  to  deliver 


438  CHARLESTON,  FEBRUARY,  1842.      VOL    II.  [*138 

tUe  goods  to  another  person,  could  not  be  proved  by  the  plaintiff's  oath.  He 
■was  then  questioned,  whether  he  had  delivered  all  the  goods,  and  admitted  that 
he  had  not,  but  that  some  were  delivered  in  his  absence,  by  his  M'ife,  and  that 
he  afterwards  made  the  entries  as  she  directed,  and  he  could  not  designate 
the  tilings  which  he  had  delivered  himself.  To  prove  an  authority  to  deliver 
the  goods  to  Roulain,  a  note  of  the  testator  to  the  plaintiff,  for  $200,  was 
produced.  The  note  appeared  to  have  been  paid  by  Thomas  Cochran,  and  is 
in  his  possession. 

The  defendant  moved  for  a  nonsuit,  which  was  denied,  and  the  jury  found  a 
verdict  for  the  amount  of  the  plaintiff's  demand. 

The  defendant  appeals  from  the  decision  of  his  Honor,  refusing  a  nonsuit, 
and  hopes  his  Honor's  decision  will  be  reversed,  and  a  noyisuit  granted,  because 
the  plaintiff" 's  evidence  was  insufficient  to  sustain  the  action. 

*139]       *In  case  this  motion  should  not  be  granted,  she  moves  for  a  new  trial. 

1.  Because  the  plaintiff's  book  ought  not  to  have  been  allowed  to  go  to  the  jury. 

2.  Because  the  evidence  was  insufficient  to  prove  a  delivery  to  a  third  person, 
and  that  x'ei"son  should  have  been  produced. 

3.  Because  there  was  no  evidence  to  prove  an  order  of  the  testator  to  deliver 
the  goods  to  Roulain. 

4.  Because  the  entries  were  made,  as  plaintiff  admitted,  partly  on  the  recollec- 
tion of  his  wife,  and  his  oath,  therefore,  could  not  supply  any  proof  as  to  them. 

Curia,  per  Johnson,  J.  The  objection  to  the  admissibility  of  the 
plaintiif 's  book  of  account  as  evidence,  is  founded  ou  the  informal  and 
irregular  manner  in  which  it  has  been  kept,  and  from  the  specimen 
exhibited  on  the  argument  of  this  case,  it  is  true  that  the  manner  is  very 
un mercantile,  and  would,  perhaps,  shock  a  regular  clerk,  but  the  Court 
do  not  feel  themselves  at  liberty  to  prescribe  the  mode  iu  which  mer- 
chants and  shop-keepers  shall  keep  their  books.  The  best  informed 
amongst  them  would  perhaps  differ  about  this  matter,  and  if  they  are  so 
kept  as  to  be  intelligible,  I  see  no  reason  why  they  should  not  be  equally 
admissible,  whether  they  are  kept  by  double  or  single  entries,  or  as  in 
this  case,  by  setting  ai)ait  a  page,  or  part  of  a  page,  for  each  customer, 
and  exhibiting  at  one  view  the  whole  account,  or  whether  the  credits  and 
payments  are  expressed  by  a  formal  entry  of  the  amount,  with  the  day 
and  date,  or  by  crossing  the  account,  or  writing  on  it  in  a  strong  hand, 
the  wurd  "paid."  The  books  of  such  persons  are  allowed  for  evidence, 
and  cannot,  therefore,  be  excluded,  but  it  does  not  follow  that  they  may 
not,  npon  the  face,  exhibit  such  evidence  of  fraud  as  would  justify  a  jury 
in  discrediting  them  ;  and  instances  of  that  sort  have  occurred  within  my 
own  observation;  but  that  is  a  matter  for  the  consideration  of  the  jury, 
and  not  for  the  Court,  and  a  snflicient  motive  might,  it  is  thought,  be 
found  to  induce  more  attention  to  keeping  books,  in  the  circumstance, 
that  those  in  the  most  a))proved  form  would  most  likely  obtain  the  most 
im]ilicit  credit.  The  defendant's  motion  cannot,  therefore,  prevail  on  the 
first  ground. 

I  was  under  the  impression  while  the  2d  and  3d  grounds  were  under 
discussion,  thnt  the  ])liiiMtiff  had  been  permitted,  himself,  to  testify  that 
most  of  the  goods  were  delivered  to  Kitty  Roulain,  by  the  order  of  the 
defendant's  testator;  and  1  was  prepared,  on  the  authority  of  the  case  of 
Lh'OH  <l-  Dnrhtj,  (1  Noll  ^  McCord,  486,)  to  say  that  such  evidence  was 
inadmissible  ;  l)nt  I  lind,  on  tlie  examination  of  the  Judge's  report,  that  it 
was  rejected,  and  those  grounds  rest  on  the  circumstance  that  the  jury  were 
pcrmitltd  to  draw  tiie  cunclusion,  that  the  whole  account  was  just,  from 


*139]  CREIGER    ET    UX.    VS.    SMITH.  439 

the  fact  tliat  llie  defendant's  testator  had  given  a  note  of  $200  to  phiintifl', 
wliich  had  been  credited  in  ])art  of  the  account 

The  i)()\ver  of  a  jury,  in  this  res[)ect,  is  very  latitudinary,  but  in  general, 
wliere  the  law  itself  establishes  a  conclusion  from  a  given  state  of  facts, 
they  cannot  gainsay  it — for  the  same  reason  that  a  receipt  is  prima  favie 
evidence  of  a  payment,  a  note  given  by  a  deljtor  to  his  l)ook  creditor,  is 
a  presumption  of  a  settlement,  and  although  neither  is  conclusive,  the 
07}us  is  thrown  on  the  party  denying  it,  to  show  that  the  receipt  was 
given  by  mistake,  or  that  the  note  was  given  for  another  consideration 
than  the  account  claimed. 

A  stronger  illustration  of  the  correctness  of  tliis  rule,  than  the  present 
case,  is  not  perhaps  furnished  in  the  whole  history  of  judicial  proceedings. 

The  plaintiff  exhibits  here  an  account  against  the  defendant's  testator, 
for  more  than  $400,  for  goods,  the  most  of  which  were  delivered  to  a 
third  person,  and  he  shows,  that  after  they  were  so  delivered,  the  plaintiff 
gave  him  a  note  in  payment,  for  less  than  one-half*  of  the  amount.  [-^,  ,r. 
Now,  every  man  of  business  knows,  that  the  sole  ol)ject  of  substi-  ^ 
tuting  a  note  for  au  account,  is  to  shut  the  door  upon  future  investigations, 
as  to  the  account ;  and  this  is  a  rare  instance,  if  such  is  the  fact,  in  which 
a  note  has  been  given  for  a  part  of  the  amount  only,  when  the  whole  was 
owing;  and  if  I  were  at  liberty  to  draw  a  conclusion  from  these  facts,  it 
would  be,  that  the  defendant's  testator  rejected  the  account  vvhich  now 
comes  before  us  in  so  questionable  a  shape,  and  consented  to  ])ay  oidy  su 
much  as  he  was  bound  for,  which  the  plaintiff  accepted.  But  this  conclu- 
sion might  do  the  plaintiff  injustice,  and  I  will  turn  it  over  to  the  proper 
forum,  (ihe  jury,)  who  will  doubtless  put  it  right. 

The  4th  and  last  ground  is,  I  thitdv,  fully  sustained.  The  entries  made 
by  the  husband,  the  })laintiff,  of  goods  delivered  by  his  wife,  in  his  absence, 
cannot  be  proved  by  the  plaintiff;  the  wife  is  equally  competent,  and  is 
higher  evidence.  The  answer  that  the  amount  thus  charged  is  incon- 
siderable, cannot  avail — he  could  not  distinguish  the  items,  and  how, 
therefore,  can  he  undertake  to  speak  of  the  amount?  But  it  is  enough 
that  the  jury  have  found  the  whole  amount  on  evidence  incompetent,  at 
least  in  part.     New  trial  granted. 

NoTT  and  Colcock,  JJ.,  concurred. 

See  St.  Philips  Ch.  a(ls.  Wliite.     Infra,  30G.     An. 


Charles  M.  Creiger,  et  ux.,  vs.  B.  J.  Smith. 

Where  an  action  of  assumpsit  is  brought,  in  the  name  of  husband  and  wife, 
jointly,  and  the  declaration  alleges  the  promise  to  have  been  made  jointly, 
\vithout  stating  what  interest  the  wife  had,  or  any  reason  is  shown  why  she 
should  have  been  joined,  it  is  such  a  defect  as  cannot  be  cured  by  the  verdict. 
and  which  is  fatal  upon  a  motion  in  arrest  of  iudgment.  1  Chitty.  PI.  20  ;  2 
Wm.  Bl.  1236  ;  2  Games'  Rep.  221 ;  2  Bur.  170. 

Note. — This  case  was  tried  before  his  Honor,  Judge  "Wardlaw,  at  Hillisonville, 
January,  1842.  The  above  is  the  principle  decided  in  the  case,  and  the  Reporter 
viewed  this  as  all  that  was  necessary — the  only  question  arising  out  of  a  defect  in 
the  declaration. 

(a)  S.  C.  more  fully  reported  Infra,  279.     An. 


440  CHARLESTON,  FEBRUARr,  1842.      VOL.  IL  [*141 

*141]  *D.  &  J.  EwART  vs.  T.  J.  Kerr,  (a) 

Plaintiffs  brought  an  action  of  trover  against  defendant,  for  seven  bales  of  cotton, 
part  of  a  cargo  shipped  by  them  to  their  factors  in  Charleston,  on  board  Michael 
Harkins'  Bay  Boat,  the  Belle.  During  the  voyage  the  cotton  thus  shipped  was 
damaged  to  the  amoimt  of  $358, 61  ;  defendant  detained  the  seven  bales  of  cot- 
ton, under  his  lien  as  a  carrier  for  freight.  The  damage  done  to  the  cotton,  ex- 
ceeded the  claim  of  freight.  Held,  among  other  things,  first.  That  the  factors, 
the  consignees  of  the  cotton,  had  no  such  interest  as  divested  the  plaintiffs  of 
their  right  of  action. 

2.  That  where  the  injury,  done  by  the  carrier  to  the  cargo,  exceeded  the  freight,  to 
that  extent  the  carrier's  right  to  freight,  would  be  defeated. 

3.  That  where  the  thing  converted,  is  reduced  to  money,  in  the  hands  of  the  defend- 
ant, the  smallest  measure  of  damages  in  trover,  is  always  the  amount  received 
from  the  conversion,  with  interest  from  the  time  of  conversion. 

Before  O'Neall,  J.,  at  Charleston,  May  Term,  1840. 

This  was  an  action  of  trover  for  the  recovery  of  the  value  of  seven  bales 
of  cotton,  part  of  a  cargo  of  two  hundred  and  fifty  bales,  shipped  from 
Columbia  by  the  plaintiffs,  to  their  agents,  Boyce,  Henry  &  Walter, 
Charleston,  at  the  freight  of  $1  per  bale,  on  a  bay  boat,  called  the  Belle, 
and  owned  by  one  Michael  Harkins.  The  boat  was  near  five  weeks  in 
accomplishing  her  trip  ;  on  her  arrival,  it  was  found  the  cotton  was 
damaged  by  exposure  to  the  weather,  during  the  wet  and  warm  weather 
of  July  and  August,  in  which  she  made  her  trip.  The  defendant  was  the 
agent  of  Harkins ;  he  and  Boyce,  Henry  and  Walter,  as  the  agents  of 
the  plaintifTs,  agreed  upon  a  survey,  and  the  surveyors  found  that  the 
cotton  was  damaged  in  the  manner  already  stated.  The  plaintiffs  proved 
the  actual  damage  sustained  to  the  amount  of  $358.61.  From  this 
amount  of  damages,  the  agents  of  the  plaintiffs  insisted  the  freight  should 
Ije  deducted.  The  defendant  contended  that  the  freight  should  be  paid, 
and  his  demand  not  being  complied  with,  he  delivered  two  hundred  and 
forty-three  bales  of  the  cotton,  and  retained  seven  bales  for  the  freight. 
The  plaintiffs,  Ijy  their  agents,  demanded  the  cotton,  which  he  refused  to 
give  up,  and  thereupon  this  action  was  brought.  Subsequently,  by  an 
agreement  between  the  plaintiffs  and  the  defendant,  the  seven  bales  of 
cotton  were  sold,  and  so  much  of  the  proceeds  as  exceeded  the  freight, 
was  paid  to  the  i)laintiffs ;  the  amount  covering  the  freight  was  to  be 
*14'>1  ''^'^o^'^'^'cd  ^^  retained,  according  to  the  *rights  of  the  parties,  as 
"■^  tliey  miglit  be  adjudged  in  this  case.  Pending  this  suit,  Harkins 
died.  The  plaintiffs  sued  his  administrator  for  the  damage  done  to  the 
cotton,  and  recovered  $358.61,  for  which  sum,  on  the  30th  of  July,  1839, 
they  entered  up  judgment.  On  this  judgment  which  had  been  recovered, 
subject  to  the  plea  q{ plene  adminidravit  praetet^  the  plaintiffs  received 
their  dividend  of  the  effects  of  Harkins,  amounting  to  $215.16,  leaving  a 
baliiiicc  of  their  damages,  $143.45,  still  unpaid.  At  the  close  of  the 
plaintiffs'  case,  the  defendant  moved  for  a  nonsuit  on  the  grounds, 

Ist.  Tiiat  the  action  ought  to  have  been  in  the  name  of  the  consignees. 

2d._  That  there  was  still  a  balance  of  freiglit  due  to  the  carrier,  after 
allowing  the  plaintiffs  to  discount  their  remaining  damages  against  it. 
The  freight  being  $250,  the  balance  of  damages  unpaid  $143^45,  there 

(«)  S.  C.  before.  Rice  L.  203.     An. 


♦142]  EWART   VS.    KERR.  441 

remained  $106.55  of  freight  still  due,  for  which  the  carrier  and  the 
defendant,  his  aprent,  had  a  lien  upon  the  seven  bales  of  cotton,  no  tender 
of  this  balance  of  freight  having  been  proved. 

On  the  first  ground  it  was  ruled  by  the  Court,  that  the  proof  was  clear 
that  Boyce,  Henry  &  Walter  were  merely  the  agents  of  the  plaintiffs,  to 
sell  the  cotton ;  and  that  they  had,  therefore,  no  such  interest  under  the 
consignment,  as  divested  the  plaintiffs  of  their  right  of  property. 

On  the  second  ground,  it  was  held,  that  at  the  bringing  of  this  suit, 
the  damage  done  to  the  plaintiffs'  cotton  exceeded  the  freight.  That 
they  subsequently  recovered  a  part  of  it,  was  in  aid  of  the  defendant,  by 
relieving  him  from  a  portion  of  the  sum  in  his  hands,  to  which  the 
plaintiffs  were  entitled.  It  could  not  affect  their  legal  rights,  to  recover 
against  the  defendant  when  their  action  was  brought. 

The  motion  for  nonsuit  was  overruled. 

The  case  went  to  the  jury,  who  were  instructed,  if  the  cotton  was 
injured  in  the  possession  of  the  carrier,  by  any  thing  else  than  such  as 
arose  from  the  act  of  God,  or  the  enemies  of  the  country,  that  then  the 
carrier  would  be  liable  for  such  injury,  and  that  it  would,  to  its  extent, 
defeat  his  right  to  freight.  They  were  told  that  in  the  action  *of  r*i  io 
trover,  the  plaintiffs  were  entitled  to  interest  on  the  value  of  the  ^ 
thing  converted  from  the  time  of  conversion,  and  that  here,  after  they  had 
allowed  the  deduction  of  the  sum  paid  by  Harkins'  estate,  they  would  be 
entitled  to  interest  on  the  balance  of  their  damages  in  the  hands  of  the 
defendant  from  the  conversion. 

The  jury  found  accordingly;  the  defendant  renews,  in  the  Court  of  Appeals, 
his  motion  for  nonsuit,  on  the  grounds  taken  on  the  Circuit,  and  iuiliug  iu  that 
motion,  he  moves  for  a  new  trial,  on  the  grounds  : 

1st.  That  no  interest  should  have  been  allowed  on  the  balance  of  damages, 
§143.45,  prior  to  the  judgment  against  the  administrator,  30th  July,  1839,  as 
until  then  they  were  unliquidated. 

2d.  The  plaintiffs  had  demanded  interest  on  their  damages  in  their  action 
against  tlie  administrator  of  Harkins,  and  tlie  jury  had  refused  to  allow  it. 

3d.  That  if  the  lilaintiffs  were  entitled  to  a  verdict,  under  the  circumstances, 
the  damages  should  have  been  only  nominal. 

Curia,  per  O'Neall,  J.  This  case  indirectly  makes  the  same  ques- 
tion which  was  formerly  decided, (a)  and  with  which  we  remain  satisfied 
notwithstanding  the  frequent  direct  and  indirect  reviews  to  which  it  has 
been  subjected.  No  one  ever  doubted  that  a  carrier's  lien  consists  in  a 
right  to  retain  his  cargo  until  paid  his  lien.  But  when  he  retains  only  a 
part  and  not  the  whole,  I  think  he  may  be  fairly  required  to  measure  the 
part  retained  by  the  amount  due,  if,  in  point  of  fact,  he  had  no  lien  on 
account  of  damages  sustained  by  the  plaintiff  in  the  transportation  of  the 
goods,  then  the  allowance  of  the  balance  of  freight  due  to  him  is  a  new 
matter  in  mitigation  of  damages. 

The  true  view  of  the  case  is  to  consider  it  as  standing  ujion  the  proof, 
that  the  plaintiffs'  cotton  was  damaged  to  the  amount  of  three  hundred 
and  fifty-eight  dollars  and  sixty-one  cents,  which  is  a  greater  sum  than 
the  freight  due,  and  when  this  was  shown  the  defendant's  right  to  retain 
for  freight  was  also  gone.     For  it  all  properly  ought  to  be   absorbed  in 

(a)  Rice,  203.     An. 


442  CHARLESTOX,  PEBRUARY,  1842.      VOL.11.  [*143 

damages  ;  and  if  in  the  action  brought  by  Ewart  vs.  Harkins^H  admima- 
*i  ill  ^'^ofor,  the  ^defendant  had  set  off  the  freight,  the  whole  matter  would 
-J  have  been  free  from  difficulty.  If  he  did  not  choose  so  to  do,  the 
plaintiffs'  right  cannot  be  thereby  affected.  The  utmost  which  Harkins, 
in  whose  place  the  defendant  is,  could  now  ask  in  the  case  against  him, 
would  be  to  diminish  the  damages  in  trover  by  deducting  from  the 
amount  for  which  the  cotton  sold,  as  much  as  might  remain  of  the  freiglit, 
after  deducting  the  uncollected  balance  of  the  damages  found  for  the 
injury  done  to  the  cotton.  This  was  done  in  this  case,  but  it  is  said  the 
defendant  is  injured  by  this  course.  How  ?  He  has  two  hundred  and 
fifty  dollars  of  the  plaintiffs'  cotton  in  his  hands.  If  Harkins  had  set  off 
the  freight  in  the  action  against  him,  the  defendant  must  have  paid  this 
whole  sum,  with  interest  and  costs;  as  it  is,  he  has  one  hundred  and  five 
dollars  and  fifty-five  cents  left  in  his  hands  to  be  accounted  for  to  Har- 
kins, out  of  which  he  may  retain  his  costs.  In  this  way  it  seems  to  me 
he  is  benefitted.  But  it  is  agreed  the  plaintiffs  get  more  in  the  way  in 
which  they  proceeded  than  they  would  if  the  freight  had  been  deducted 
at  law.  If  that  had  been  done,  they  would  have  recovered  the  whole 
sum  retained  by  Kerr  for  freight,  two  hundred  and  fifty  dollars,  and  their 
dividend  on  one  hundred  and  forty-eight  dollars  and  sixty-five  cents,  the 
balance  of  their  damages,  say  eighty-six  dollars  and  seven  cents,  making 
an  aggregate  of  three  hundred  and  fifty-eight  dollars  and  sixty-one  cents. 
Now  they  receive  their  dividend  on  three  hundred  and  fifty-eight  dollars 
and  sixty-one  cents,  the  damages  found  two  hundred  and  fifteen  dollars 
and  sixteen  cents,  and  one  hundred  and  forty-three  dollars  and  forty-five 
cents,  the  verdict  in  this  case,  making  an  aggregate  of  three  hundred  and 
fifty-eight  dollars  and  sixty-one  cents.  But  they  pay  on  account  of  the 
freight,  the  balance  left  in  Kerr's  hands  one  hundred  and  six  dollars  and 
sixty-five  cents,  which  must  be  deducted  from  the  last  aggregate,  which 
leaves  the  amount  really  obtained  by  them  by  the  course  of  actions  to 
which  ihey  have  been  driven  two  hundred  and  fifty-one  dollars  and 
ninety-six  cents,  less  by  eighty-four  dollars  and  eleven  cents  than  the  sum 
to  which  they  would  have  been  otherwise  entitled. 

But  these  considerations  really  have  nothing  to  do  with  this  case  ;  the 
recovery  of  damages  against  Harkins'  administrator  could  not  restore  the 
defendant's  lien.  It  was  ended  from  the  fact  of  injury  done  to  the  plain- 
tiffs' cotton  to  a  greater  amount.  After  the  recovery,  Harkins'  adminis- 
trator might  have  brought  a  cross  action  for  his  freight,  against  which 
any  l)alaiice  due  in  the  former  recovery  would  be  set  off.  Without  all 
this  circuity  tliis  has  been  done  in  effect  by  the  verdict  here.  The  other 
grounds  relating  to  interest  may  be  disposed  of  at  once,  by  simply  re- 
♦1451  *'""''''''"^  '''^t  where  the  thing  converted,  is  reduced  to  money,  in 
tiie  hands  of  the  defendant,  the  smallest  measure  of  damages  in 
trover,  is  always  the  amount  received  from  the  conversion,  with  interest 
from  the  time  of  conversion.     The  motion  is  dismissed. 

Evans,  Butlkr,  and  Wardlaav,  JJ.,  concurred. 

McCreadij  and  Cuhhccll,  for  the  motion. 
Petricjru  and  Lcscsne.  contra. 


145]  THE   TREASURERS    VS.    OSWALD    ET    AL.  443 


The  Treasurers  vs.  John  Oswald,  et  al. 

Where  a  sheriflf  has  been  sued  on  his  official  bond,  and  to  the  plea  of  perforraanco, 
there  is  a  replication,  by  plaintiiFs  assignin;^  as  a  broach,  "that  the  sheriff, 
during  his  term  of  office,  to  wit,  on  tlie  1st  January,  1821,  and  on  divers  days 
betwoon  tliat  day  and  tlie  2r)tli  January,  LSI?,  had  and  received,  for  and  on 
account  of  the  plaintiff,  &c.,  a  large  sum  of  money,  to  wit,  the  sum  of  .$2,39G  92, 
and  that  tlie  same  was  not  paid  over."  To  this  replication,  there  wore  special 
demurrers.  In  the  Appeal  Court,  the  demarrers  were  overruled,  and  the  rei>li- 
cation  was  sustained. 

Before  O'Xeall,  J.,  Colleton  District,  Spring  Terra,  1841. 

These  were  actions  of  debt,  on  the  official  bond  of  Wm.  Oswald,  late 
sheriff  of  Colleton,  during  his  terra  of  office,  from  February,  iSlt,  to 
February,  1821.  To  the  ])leas  of  performance,  the  plaintiffs  replied,  and 
assigned  for  breach,  that  the  said  sheriff,  during  his  term  of  office,  to  wit, 
"on  the  first  day  of  January,  1821,  and  on  divers  days  between  that  day 
and  the  25th  of  January,  1817,  had  and  received,  for  and  on  account  of 
the  said  Treasurers,  and  their  successors  in  office,  a  large  sum  of  money, 
*to  wit,  the  sura  of  $2,396.92"  and  that  he  did  not  pay  the  sarae  r^i  </. 
over.  To  which,  there  were  special  demurrers,  for  the  causes.  ^ 
1st.  That  the  plaintiffs  did  not  set  forth  at  what  specific  times,  and  in 
what  several  sums,  the  said  sheriff  received  the  said  sum  of  $2,396.92. 
2nd.  That  tlie  said  replication  assigned  several  and  independent  breaches. 

The  Court  thought  the  replication  was  too  general,  and  sustained  the 
demurrer. 

The  plaintiffs  appeal,  and  contend  that  the  decision  should  have  been 
otherwise. 

Air.  Edwards,  for  the  motion,  submitted  the  case  without  argument. 

Mr.  Jihett,  contra,  argued  the  case,  and  cited  in  support  of  his  view,  2  Saund. 
411,  note  4 ;  1  Chit.  401 ;  Gainsford  vs.  Griffith,  1  Saund.  58  ;  Arlington  vs.  Merricle, 
2  Saund. 

Curia,  per  O'Neall,  J.  On  the  authority  of  the  rule  stated  by  Mr. 
Sergt.  Williams  in  his  note  4,  to  Arlington  vs.  Merricke,  2  Saund., 
411,  that  "when  a  subject  comprehends  multiplicity  of  matter,  then,  in 
order  to  avoid  proli.xity,  the  law  allows  of  general  pleading,"  we  think 
the  demurrer  ought  to  have  been  overruled.  For,  although  the  replica- 
tion is  very  general,  and  does  not  even  state  from  what  causes  the  money 
arose,  which  the  replication  alleges  that  the  sheriff  received  for  and  on 
account  of  the  Treasurers,  yet  the  fact  stated  that  it  was  money  received 
for  and  on  account  of  the  plaintiffs,  brings  it  within  the  cases  referred  to 
by  Sergt.  Williams,  and  therefore,  we  are  disposed  to  sustain  the  replica- 
tion. 

The  motion  to  reverse  the  decision  below  is  granted,  the  defendants' 
demurrer  is  overruled,  and  they  are  ordered  to  rejoin. 

Richardson,  Evans,  Butler  and  Wardlaw,  JJ.,  concurred. 

Sec  Treasurer  vs.  Rivers,  post.  209  ;  Treasurer  vs.  Bucknor,  post.  324.     An. 


444  CHARLESTON,  FEBRUARY,  1842.       VOL.  II  [*147 


*147]  *Allen  J.  Dean  vs.  Solomon  Horton. 

1.  In  action  for  an  assault  and  battery,  the  preceding  •words,  or  imputations  of  the 
same  kind  as  those  which  immediately  led  to  the  assault,  if  previously  commu- 
nicated to  the  defendant,  may  be  offered  in  evidence,  by  way  of  mitigation  of 
damages. 

2.  The  inducement  to  the  transaction,  and  all  such  particulars,  in  the  conduct  of 
either  party,  leading  to  the  final  act,  or  forming  part  of  it,  as  seemed  to  show 
in  what  degree  blame  attached  to  them  severally  ;  and  such  acts  as  would  aid 
the  jury  in  determining  the  just  measure  of  damages,  would  be  admissible 
evidence. 

Tried  before  "Wardlaw,  J.,  at  Gillisouville,  January,  1842. 

The  defendant  committed  a  grievous  battery  upon  the  plaintiff,  at  a 
shooting  match. 

At  various  periods,  on  the  day  of  the  injury,  the  parties  were  observed. 
They  met  and  shook  hands.  Horton  was  afterwards  seen  to  lay  his  hand 
in  a  rude  manner  on  Dean's  breast,  and  to  use  some  provoking  language, 
which  Dean  did  not  notice.  They  sat  together  some  time  in  conversation. 
Horton  passed  when  Dean  was  talking  abusively  of  him,  and  said,  "Mr. 
Dean,  you  have  been  talking  enough  of  me — it  is  time  to  quit."  Dean 
being  somewhat  intoxicated,  was  talking  in  an  ordinary  strong  voice, 
fwithout  regard  to  who  should  hear,  and  was  overheard  by  several  per- 
sons,) with  a  witness  on  horseback,  to  whom  he  said,  that  he  and  Horton 
had  settled  their  difficulty  ;  then  he  joked  the  witness  about  giving  a 
frock  to  Mrs.  Horton,  and  being  checked  said  that  Mrs.  Horton  was  the 
damnedest  liar  in  the  world  ;  abused  her  much  ;  said  of  her  every  thing 
excejit  that  she  was  a  virtuous  woman  ;  and  mentioned  certain  words 
that  he  said  she  had  spoken,  which  implied  her  indecent  intimacy  with  his 
son.  At  this  moment  Horton  rushed  forward.  Instantly,  Dean  struck. 
Horton  drew  a  pistol,  and  shot  Dean  in  the  hand,  and  immediately  drew 
a  knife,  with  which  he  stabbed  Dean  in  the  hip.  The  wounds  were 
Bevere,  but  not  dangerous. 

It  was  manifest  that  Horton  came  provided  with  deadly  weapons  ;  and 
by  way  of  further  mitigation  and  explanation  of  his  conduct,  he  offered  to 
show  imputations  upon  his  wife's  chastity,  made  by  Dean,  at  times  pre- 
ceding the  day  of  their  meeting.  This  was  objected  to,  but  the  presiding 
♦1481  '^^^'^'-^^  ^^^^^^  ^^^^^  preceding  imputations  of  the  same  *kind  as  those 
which  immediately  led  to  the  assault,  if  previously  communicated 
to  the  defendant,  might  be  offered  in  evidence.  Under  this  permission, 
the  defendant  proved,  that  at  various  times,  and  to  various  persons,  the 
plaintiff  had  talked  of  different  men  having  given  frock  patterns  to  Mrs. 
H'»ririn,  with  a  meaning  which  all  understood  to  be  injurious  to  her;  and 
that  these  conversations  had  been  repeated  to  the  defendant,  who,  on  one 
occasion,  to  a  witnes.s,  threatened  to  shoot  Dean,  if  he  did  not  quit  talking 
about  Mrs.  llorton. 

The  Court  l)rought  to  the  consideration  of  the  jury,  the  very  blameable 
conduct  of  botlj  i»arties,  and  told  them  that  the  damages  should  be 
CRti mated  witliout  regard  to  the  fact  that  there  was  a  conviction  on  an 
indictment  for  the  same  battery;  the  jury  found  a  verdict  of  one  dollar. 

The  plaintiff  a])poals,  on  tlio  pronnds  annexed: 

1.  Becausii  bis  Honor  peruiitted  testimony  of  provocation,  on  the  part  of 


♦148]  DEAN   VS.   nORTON".  445 

tho  plaintiff,  accruing  at  various  times  before  the  day  of  the  alleged  assault,  to 
go  to  the  jury. 

2.  Because  the  verdict  was,  in  other  respects,  contrary  to  law  and  the  evidence. 

Ihitson,  for  the  motion.  If  the  Judge  admits  evidence  whicli  should  be  rejected, 
it  is  good  ground  for  a  new  trial.  Kinloch  vs.  Palmer  et  al.,  1  M'C.  R.  21  (i.  The 
Court  will  not  pretend  to  judge  how  far  it  did  or  did  not  influence  the  jury,  but 
will  grant  a  new  trial.  Everingham  ads.  Langton,  2  M'C.  157.  And  this,  although 
there  is  no  apparent  error  in  the  verdict  itself.     Smyel  vs.  Niolon,  2  Bail.  421. 

The  Judge  did  admit  improper  evidence — for  no  evidence  of  provocation  occur- 
ring before  the  day  of  assault  is  admissible.  Avery  vs.  Ray,  1  Mass.  R.  12.  And 
he  admitted  evidence  of  defendant's  character,  to  which  plaintiff  objected.  Lloyd 
vs.  Monpoy,  2  N.  &  M'C.  44(J. 

The  Court  will  sometimes  interfere,  and  order  a  new  trial,  from  the  smallness  of 
the  verdict. 

Outrageous  assault,  $1  damages — new  trial  ordered.  Bacot  vs.  Keith,  2  Bay. 
400,  which  is  a  case  all  fours  with  ours.  See  also,  Wallace  vs.  Trapier,  2  N.  & 
M'C.  510  ;  Richardson  vs.  Dulces  4  M'C.  156. 

*Martin,  contra.    Quoted  and  relied  on  Rhodes  vs.  Burr  ell  ct  al.,  3  M'Cord,    [-#140 
66.     "Where  facts  and  circumstances  were  permitted  to  be  given  in  evidence, 
even  when  they  involved  character,  and  the  case  of  an  insult  to  a  wife  or  daughter, 
was  one  of  tlie  illustrations  used  by  Judge  Nott.     He  farther  contended,  that  it 
was  a  case  of  which  the  jury  were  the  proper  judges. 

Curia,  per  Wardlaw,  J.  This  Court  thinks  that  the  testimony  ob- 
jected to  was  admissible. 

It  micrht  be  said  that  this  case  differed  from  the  case  of  Avery  vs.  Ray 
et  al.,  1  Mass.  12,  which  has  been  relied  on  for  plaintiff,  in  this:  that 
there,  it  appeared  that  no  provocation  at  all  was  offered  on  the  day  of 
the  injnry,  and  it  could  have  been  only  by  presumption,  that  any  previous 
provocation  could  have  been  assigned  as  the  motive  of  the  defendant ; 
but  the  principles  assumed,  and  the  language  employed  by  the  Judges, 
who  decided  that  case,  are  opposed  to  the  admission  of  the  testimony 
here.  The  case  of  Rhodes  vs.  Burrell,  3  McC.  66,  decided  by  our  own 
Court,  is,  however,  in  language  equally  strong,  in  favor  of  the  admission, 
and  it  seems  to  be  as  well  supported  by  reason. 

The  testimony  was  offered  in  mitigation  ;  inquiry  was  to  be  made  into 
the  motive  of  the  defendant.  The  inducement  to  the  transaction,  and  all 
such  particulars  in  the  conduct  of  either  party,  leading  to  the  tinal  act, 
or  forming  part  of  it,  as  seemed  to  show  in  what  degree  blame  attached 
to  them  severally,  were  calculated  to  aid  the  jury  in  determining  the  just 
measure  of  retribution  and  punishment.  A  provocation  seeming  light, 
may  have  exasperated  patience,  if  it  were  a  repetition  of  an  offence,  before 
qften  given  and  endured  ;  and  resentment,  otherwise  rash,  or  preparation, 
otherwise  ferocious,  may  be  explained  by  the  previous  relation  of  the 
parties  in  former  occurrences  between  them. 

In  like  manner,  the  testimony  offered  by  the  defendant,  of  his  own 
peaceable  character,  objected  to  here  in  the  argument,  was  calculated  to 
throw  light  upon  the  nature  of  the  provocation  which  could  have  sud- 
denly roused  him  *to  extreme  revenge,  and  is  wholly  different  r:iti'A 
from  testimony  of  the  plaintiff's  character  not  put  by  himself  in  '- 
issue.     The  motion  is  dismissed. 

Richardson,  0'Ne.\ll,  Evans,  and  Butler,  JJ.,  concurred. 


446  CHARLESTON,  FEBRUARY,  1842.      YOL.  II.  [*150 


G.  W.  Cooper  vs.  W.  R.  Scott. 

A  sheriflf  is  bound  to  take  notice  of  the  liens  in  his  office,  and  to  pay  money  col- 
lected by  him  under  otficial  authority,  to  the  oldest  execution.  And  when  he 
pays  money  to  a  junior  execution,  he  does  so  at  his  own  risk,  and  he  will  be 
held  liabletbr  the  consequences  either  by  rule  or  action  at  law.  See  Act  1839, 
21  sc'-.,  p.  30,  drfining  sheri_ff^s  duties. (^d) 

2.  When  there  is  a  contest  for  money,  collected  by  a  sheriff  in  his  official  capacity, 
he  is  a  stakeholder  and  must  hold  his  hand  (but  in  good  faith  and  without  col- 
lusion with  either  party),  until  the  adverse  claims  are  subjected  to  adjudica- 
tion. (6) 

3.  A  rule  will  always  go  where  the  legal  rights  of  the  parties  can  be  made  to  ap- 
pear from  a  conceded  statements  of  facts.  But  where  the  facts  are  disputed, 
and  the  law  depends  on  their  develoi^ement,  the  parties  should  be  left  to  their 
action  at  law,  or  an  issue  will  be  directed  at  law  to  try  them,  (c) 

Before  Richardson,  J.,  at  King's  Tree,  Spring  Term,  1841. 

The  defendant  was  indebted  to  the  plaintiff,  by  judgment,  to  the  amount 
of  $S00,  for  which  Q,fi.  fa.  had  been  sued  out,  and  lodged  in  the  sheriffs 
office  on  the  19th  November,  1839.  The  plaintiif  had  also  recovered 
judgment  for  the  same  debt,  against  Dr.  W.  J.  Buford,  who  was  surety 
of  the  defendant,  W.  R.  Scott,  for  the  said  debt.  There  were  other  exe- 
cutions in  the  sheriff's  office  against  W.  R.  Scott,  in  favor  of  other  credi- 
tors, to  the  amont  of  ^550,  of  the  same  date  with  that  of  the  plaintiff,  G. 
W.  Cooper  ;  and  there  were  junior  executions  against  him,  to  a  conside- 
^ , . , -,  rable  amount,  but  no  senior  unsatisfied  judgment  *or  execution. 
-'  At  this  term,  the  plaintifl',  G.  W.  Cooper,  took  out  a  rule  against 
the  sheriff,  to  show  cause  why  he  had  not  made  the  money  under  the  said 
execution.  The  rule  was  taken  out  at  the  instance  of  Dr.  Buford,  whose 
counsel  were  present  and  joined  in  the  conduct  of  the  proceedings  under 
the  rule.  These  proceedings,  and  the  questions  made  in  them,  will  be 
fully  understood  from  the  report  of  his  Honor,  the  presiding  Judge, 
•which  is  as  follows  : 

This  was  a  rule  upon  the  sheriff  of  Williamsburg  district,  as  follows : 
on  motion  of  Harllee  and  Rich,  plaintiff's  attornej's,  it  is  ordered,  that 
the  sherilf,  Solomon  Coward,  do  show  cause,  on  to-morrow  morning,  at 
ten  o'clock,  why  he  has  not  made  the  money  in  the  above  stated  case,  and 
parlicuhirly  why  he  has  not  applied  the  proceeds  of  the  sales  of  the 
following  property,  sold  as  defendant's,  under  executions  in  his  office,  to 
the  abovc_^casc,  to  wit ;  Jacol),  sold  for  $721,  Milly,  and  Dolly,  for  $501, 
Beck,  for  ?6(;5,  Lucy  for  §256,  three  hundred  and  seventy-five  acres  of 
land  for  $200,  three  horses  for  $98,  and  a  riding  chair,  for  $36,  and  some 
cuttle  :  the  said  sales  amounting,  besides  the  cattle,  to  $2,537. 

To  this  rule,  the  sherilf  returned,  that  he  had  sold  the  property 
mentioned  in  the  rule,  under  the  execution  above  stated,  and  sundry 
other  executions  in  his  office  against  the  same  defendant,  many  of  them 
of  the  same  date  with  the  execution  of  G.  W.  Cooper.  But  that  there 
were  mortgages  of  the  said  property,  given  by  the  defendant,  of  a  prior 
date  to  the  date  of  the  lodgment  of  the  executions  against  the  defendant, 

(n)  3  Rifli.,  1  ;  2  Bail.,  412;  4  llich.,  130.     An. 
(/i)  1  Hill,  117;  2  Rich.,  028;    Ki  liicli.,  121.     An. 
(,<■)  2  Bail.,  010  ;    G  Rich.,  322.     An. 


♦151]  COOPER  y."?.  SCOTT.  447 

in  liis  office.  Tliat  at  tlie  time  of  tlic  sale,  the  mortfj^a^ees  were  present 
witli  tiieir  mortgages ;  that  tliey  consented  to  tlie  sale,  with  tlie  nnder- 
standing,  as  the  siioriff"  supposed,  witli  the  plaintiffs  in  execntion,  and 
liiniseif,  that  tlie  proceeds  of  sale  should  belirst  applied  to  the  mortgages. 
The  plaintiff  in  execution,  (1.  W.  Cooper,  was  not  present  at  the  sale, 
but,  after  the  application  of  the  funds,  informed  tlie  res)iondent,  that  he 
was  satislied.  The  respondent  applied,  and  paid  the  whole  of  the  funds, 
with  the  exception  of  about  $300,  to  the  payment  of  the  morigages, 
believing  that  he  was  doing  what  was  equitable  and  right. 

*To  this  return  the  plaintiff  excepted,  as  insufficient,  because  r^icg 
the  sheriff'  had  not  returned    and  accounted  for  the  sale  of  Rose  ^ 
and  her  children,  made  Gtli  January,  1840,  amounting  to  §1131. 

Upon  which  the  sheriff'  amended  his  return,  as  follows  : 

The  sheriff  further  returns,  and  after  hearing  particularly  what  was 
further  required  by  the  plaintift''s  counsel,  that  he  levied  on  a  negro 
woman  Rose,  and  children,  as  property  of  the  defendant.  That  he 
offered  them  for  sale,  and  the  sale  was  forbid  by  J.  T.  Scott,  who 
claimed  them,  as  trustee,  under  a  deed  of  trust  in  favor  of  the  wife  of 
defendant.  The  sheriff  stopped  the  sale,  as  the  deed  was  older  than  the 
cau-e  of  action  in  said  execution,  and  he  immediately  notified  the  plaintiff 
that  he  would  not  sell  without  indemnity  ;  but  the  said  plaintiff"  said  he 
would  not  give  a  bond  of  indemnity,  as  he  would  not  risk  it.  The 
negroes  were  afterwards  put  up  by  the  sheriff  on  executions  of  Chandler 
and  Graham,  the  causes  of  action  being  older  than  the  deed,  by  consent 
of  the  trustee  ;  and  the  proceeds  of  sale,  by  consent  of  the  trustee,  were 
paid  to  the  said  cases,  leaving  a  balance  in  the  hands  of  the  sheriff  of 
$371.73,  which  the  trustee  is  demanding,  and  the  execution  creditors 
liave  forbidden  him  to  pay  to  the  trustee.  He  has  the  balance,  ready  to 
pay,  when  he  can  do  so  under  protection.  He  has  also  in  his  hands 
sundry  executions  of  same  date  as  plaintiff''s  against  defendant. 

The  sheriff"  submits  that  he  is  not  in  contempt.  He  has  done  every 
thing  in  his  power  to  make  the  money  of  plaintiff'  out  of  defendant,  and 
it  has  not  been  in  any  way  his  fault,  that  the  property  of  defendant  was 
incumbered,  so  as  to  be  beyond  the  reach  of  plaintiff's  execution.  He 
respectfully  submits,  that  it  is  a  contest  for  the  money  between  the 
creditors  and  the  trustee,  and  that  he  is  not  in  fault,  or  contempt.  He 
refers  to  his  whole  course,  as  sheriff  to  testify  that  it  has  been  his  pride 
to  perform  his  duty,  so  as  never  to  be  in  contempt  of  the  Court  of  which 
he  is  the  executive  officer. 

The  Court  saw  nothing  in  the  proceedings  to  induce  the  supposition, 
that  the  sheriff  had  committed  any  contempt,  and  the  Court  would  not 
impose  any  penalty  or  punishment  upon  its  officer,  where  it  appeared  that 
there  *was  no  contempt  committed  by  the  officer  to  the  authority  j-^. ..-, 
of,  or  in  violation  of  the  respect  due  to,  the  Court.  L   ^''^ 

Upon  this  ground  the  rule  was  discharged.  The  plaintiff  ai)peals 
upon  the  grounds  annexed. 

The  plaintiff;  U.  W.  Cooper,  on  behalf  of  Dr.  W.  J.  Buford,  ajipeals 
from  the  decision  of  his  Honor  dismissing  the  rule,  and  moves  that  the 
same  may  l»e  reversed  ;  and  that  the  sheriff"  may  be  ordered  to  pay  over 
so  much  of  the  moneys  in  his  hands,  arising  from  the  snles  of  property 
mentioned  in  the  said  rule,  and  his  returns  thereto,  as  will  be  sufficient  to 


448  CHARLESTON,  FEBRUARY,  1842.      YOL.  11.  [*153 

satisfy  the  amount  due  on  the  plaintiff's  judgment  at  the  time  when  the 
said  rule  was  argued  in  the  Circuit  Court,  with  interest  and  costs.  And 
in  support  of  his  said  motion,  he  relies  upon  the  following  grounds : 

1.  That  in  making  sale  of  theproperty  alleged  to  have  been  mortgaged,  the 
sheriff  sold,  and  could  sell,  nothing  but  the  equity  of  redemption,  and  the 
proceeds  of  the  sale  were,  therefore,  applicable  to  the  plaintiff's  execution  ; 
and  that  his  payment  to  the  supposed  mortgagees  could  not  exempt  him  from 
the  performance  of  his  official  obligation  to  pay  over  the  said  proceeds  to  the 
satisfaction  of  the  executions  in  his  office,  according  to  their  legal  priority. 

2.  That  if  a  voluntary  conveyance  be  fraudulent  and  void  as  to  an  existing 
creditor,  it  is  void  as  to  all  creditors ;  and  where  a  subsequent  creditor  has 
acquired  a  prior  lien  by  judgment  and  execution  against  the  donor,  if  the 
property  which  forms  the  subject  of  the  gift,  is  sold  under  a  junior  execution 
of  the  existing  creditor,  the  subsequent  creditor  is  entitled  to  the  proceeds,  by 
virtue  of  the  lien  of  his  prior  execution.  And  whether  the  gift  be  fraudulent 
and  void,  or  not,  if  the  property  is  sold  as  the  property  of  the  defendant,  and 
under  execution  against  him,  the  proceeds  must  be  applied  to  the  senior  lien 
in  the  sheriff's  office. 

3.  That  the  sheriff  is  bound  to  apply  the  proceeds  of  property  sold  by  him 
to  the  oldest  lien  in  his  office,  and  he  has  no  authority  to  look  into  the  cause  of 
action  for  the  purpose  of  administering  a  fanciful  equity.  And  to  permit  him, 
^, .,-,  in  violation  of  the  plain  rules  of  law,  to  pay  *a  junior  execution,  and  put 

J  an  older  execution  creditor  to  his  action,  on  the  plea  that  he  intends  no 
disreppect  to  the  Court,  would  be  to  place  parties  at  the  mercy  of  sheriffs,  and 
render  the  law  for  the  recovery  of  debts  wholly  nugatory. 

4.  'I'hat  the  right  of  the  plaintiff  in  an  execution  to  a  rule,  against  the  sheriff, 
for  the  payment  of  money  in  his  hands,  depends  upon  his  title  to  the  money, 
and  not  upon  the  sheriff's  having  been  guilty  of  a  positive  contempt,  or  inten- 
tional want  of  respect  to  the  authority  of  the  Court. 

Bailey,  for  the  motion,  cited  on  the  first  ground  2  Bail.,  28  ;  on  second  and 
third  pround  cited  2  Bail.,  128  ;  1  Bail.,  337  ;  Bail.  Equity,  Izard  vs.  Izard,  1  Bail., 
158 ;  1  Hill,  69.  On  the  fourth  ground.  If  it  appears  (upon  a  rule)  clearly  the 
right  of  the  plaintiff,  the  sheriff  is  in  contempt  if  he  does  not  pay  over  the  money 
he  has  collected,  2  Hill,  502;  1  Bail,  605,  Acts  of  1839,  sect.  19,  20,  21,  Act 
couceruing  sheriffs,  1  Bail.  Equity,  137. 

Mr.  Yeadon,  contra,  first  ground,  plaintiff  was  satisfied,  1  Tread.  Con.  Rep.,  151 ; 
2  Rice  Dig.,  275;  Harp.  L  R.,389;  second  and  third  grounds.  The  plaintiff 
refused  to  indemnify  the  sale  against  the  trust  deed.  The  sheriff  acted  as  agent 
of  the  trustees.  The  sheriff'  had  no  riglit  to  decide  whether  the  deed  was  or  was 
not  void  ;  fourth  ground  ;  cited  1  Con.  Rep.  Mills,  145  ;  it  was  a  question  of  right, 
1  Uill,  145  ;  2  Rice's  Dig.,  272;  Dud.  L.  Rep.,  292. 

Curia  per  Buti.er,  J.  The  names  of  the  parties  in  this  case,  were 
used  to  enable  Dr.  Buford  to  make  a  motion  for  his  own  benefit,  and  not 
so  much  for  tiic  purp(jse  of  punishing  the  sheriff,  as  to  have  the  money 
raised  by  him  i)ropcrly  applied.  At  the  time  the  motion  was  made.  Dr. 
Buford  was  e(jually  liable  with  the  defendant  to  pay  the  debt  under  the 
Ji.  fan.  against  both  ;  against  the  one  as  principal,  and  the  other  as 
security.  These  were  tiie  oldest  fi.  fas.  in  the  office,  affecting  the  de- 
fendant, W.  W.  Scott's  property,  and  if  the  money  raised  by  the  sheriff 
had  been  applied  io  them,  they  would  have  been  entirely  satisfied,  and 
their  liens  extinguished. 

*1501       ^^  ^•'*  '"-*^^  ^^^  ^^^^  settled  to  admit  of  controversy,  that  *a 

■  ■  ->  sheriff  is  bound  to  take  notice  of  the  liens  in  his  office,  and  to  pay 

money  raised  by  him  under  official  authority,  to  the  oldest  execution; 


♦155] 


COOPER   VS.   SCOTT.  449 


and  when  he  pays  money  to  a  junior  execution,  he  does  so  at  his  own 
risk,  and  will  be  held  liable  for  the  consequences,  either  by  rule  or  action 
at  law.  His  liability  to  be  ruled,  is  explained  and  defined  in  the  twenty- 
first  section  of  the  Act  of  1839,  page  30 — "If  any  sheriff  shall  fail  to 
execute  and  return  final  process  in  any  civil  suit,  or  to  pay  over  money 
when  demanded,  that  has  come  into  his  hands  as  sheriff,  to  the  party 
entitled  thereto,  and  shall  be  unable,  on  the  return  of  the  rule  to  be 
issued  against  him  to  show  sufficient  cause,  he  shall  be  liable  to  be 
attached  for  a  contempt,  and  may  be  ordered  by  the  Court  in  which  such 
suit  has  been  brought,  to  pay  the  debt  and  costs,"  &c. 

The  party  entitled  to  the  money,  should  always  have  it  paid  over  to 
him  when  demanded.  When  there  is  a  contest  for  the  recovery  by  dif- 
ferent bona  fide  contending  parties,  it  is  sometimes  not  very  easy  to  say 
who  is  entitled  to  receive  it.  In  such  cases,  the  sheriff  should  be  re- 
garded as  a  stakeholder,  and  should  hold  his  hand  until  the  adverse 
claims  are  subjected  to  adjudication.  This  he  must  do  entirely  in  good 
faith,  and  without  collusion  with  either  party.  In  most  cases  of  dispute, 
he  can  judge  for  himself;  and  when  right,  he  will,  as  a  matter  of  course, 
be  protected  by  the  judgment  of  the  Court — and  when  he  withholds 
money  from  a  party  entitled  to  it,  he  will  not  always  be  exempt  from  the 
summary  o])oration  of  a  rule,  by  showing  in  his  return,  that  he  had  acted 
in  good  faith,  and  did  not  intend  a  wilful  contempt  of  the  Court.  A 
rule  will  always  go  where  the  legal  rights  of  the  parties  can  be  made  to 
appear  from  a  conceded  statement  of  facts.  But  where  the  facts  are  dis- 
puted, and  the  law  depends  on  their  development,  the  parties  should  be 
left  to  their  action  at  law,  or  should  enter  into  a  consent  rule  to  make  up 
an  issue  to  ascertain  their  rights. 

We  think  tlie  sheriff  was  right  in  first  satisfying  the  mortgages  that 
were  put  in  his  hands,  as  they  were  older  than  the  fi.  fas.  in  his  office, 
and  operated  as  liens  on  some  of  the  property  sold.  The  mortgagees 
were  present,  and  it  seems,  consented  to  release  their  lien,  by  taking  the 
proceeds*  of  the  property  sold.  It  was  competent  for  them  to  do  r^icp 
so;  and  the  sheriff",  having  acted  as  their  agent,  was  justifiable  in  L 
satisfying  these  claims  in  preference  to  the  execution  creditors.  After 
satisfying  the  mortgages,  the  balance  of  the  money  in  the  sheriff''s  hands 
should  have  been  paid  to  the  oldest  execution — provided  it  was  raised 
by  the  sale  of  the  defendant's  own  property.  For  I  think  it  would  be  in 
the  power  of  a  third  jierson  to  suffer  his  property  to  be  sold,  to  pay  the 
debts  of  the  defendant  in  execution.  In  such  case,  he  could  pay  the 
junior  execution  in  preference  to  the  senior  fi.  fa.,  and  could,  if  there 
should  be  a  surplus,  direct  the  di.^position  of  the  balance  in  the  slieriff" 's 
hands  to  his  own  use.  I  understand  from  the  return  of  the  sheriff,  that 
he  approjiriated  the  money  arising  from  the  sale  of  Rose  and  her  children, 
to  a  junior  execution,  at  the  instance  of  J.  T.  Scott,  who  claimed  the 
negroes  as  trustee.  That  is,  as  legal  owner  of  the  property,  he  suffered 
it  to  be  sold  to  pay  the  debt  of  W.  R.  Scott,  upon  the  ground  that  his 
legal  title  was  not  perfect  till  that  debt  was  paid.  But  he  contends,  that 
as  it  regards  this  judgment  of  which  Dr.  Buford  is  assignee,  Rose  and 
her  children  never  were,  in  fact,  lial)le  to  its  lien.  Whether  the  trustee 
is  right  or  not,  I  shall  not  undertake  to  determine  ;  that  depends  on  facts 
which  are  contradicted,  and  principles  of  law  ai)plicable  to  them.  The 
Vol.  I.— 30 


450  CHARLESTON,  FEBRUARY,  1842.      VOL.  IL  [*156 

position  taken  by  Dr.  Buford's  counsel  may  be  well  founded,  and  I  do 
not  say  that  it  is  otherwise;  it  is  not,  however,  entirely  free  from  doubt 
— for  if  it  were,  I  would  not  hesitate  to  enforce  the  rule  against  the 
soeriff,  notwithstanding  his  return.  An  unquestioned  right  may  as  well 
be  protected  by  rule  as  by  action.  The  ground  taken  is,  that  the  plain- 
tiff's execution  should  be  presumed,  and  even  regarded  as  paid,  from  the 
fact  that  the  sheriff  knew  of  it,  and  satisfied  a  junior  lien  from  the  sales 
of  defendant's  property.  This  would  be  the  case  if  the  property  was 
defendant's  at  the  time  of  sale,  and  was  sold  by  the  sheriff  in  execution. 
It  may  be,  that  the  deed  to  J.  T.  Scott  was  fraudulent  as  to  all  the 
creditors  of  W.  R.  Scott,  as  well  as  to  Chandler  &  Graham,  whose  junior 
execution  has  been  satisfied. 

^,..,-,  The  deed  was  voluntary,  and  may  have  been  fraudulent* — but 
J  not  necessarily  so,  from  the  fact  of  its  being  voluntary.  That  must 
depend  on  the  circumstances  and  situation  of  the  donor  at  the  time  the 
deed  was  executed.  The  general  presumption  would  be,  that  it  was 
fraudulent  as  to  all  prior  creditors.  If  it  should  turn  out  otherwise, 
upon  a  full  investigation  of  the  facts,  it  would  show  that  the  motion  was 
premature,  and  should  not  be  granted — it  not  being  right  to  make  one 
person's  property  pay  another's  debts,  because  it  was  sold  by  the  sheriff. 
The  right  of  the  trustee  to  direct  the  application  of  the  funds  in  the 
sheriff's  hands,  depends  both  on  the  fact  of  his  being  the  bona  fide 
owner  of  Rose  and  her  children,  and  of  his  subjecting  the  property  to 
sale  at  his  own  instance.  If  the  affirmative  be  true,  the  sheriff'  might  be 
regarded  as  the  trustee's  agent  to  raise  money  for  another's  benefit. 
Prudence,  at  least,  requires  that  we  should  not  deprive  the  parties  of  an 
opportunity  of  litigating  their  claims  according  to  the  common  course  of 
the  law ;  or  to  have  an  issue  made  up  to  try  the  question  involved  in  dis- 
pute. In  this  view  of  the  subject,  the  Court  think  that  the  motion  should 
be  granted,  and  an  issue  is  directed  to  be  made  up  to  try  the  question, 
whether  the  money  in  the  hands  of  the  sheriff  should  not  be  applied  to 
the  payment  of  the  judgment  of  Cooper  vs.  Scott.  In  that  issue,  Dr. 
Buford  is  to  be  the  actor,  but  must  proceed  in  the  name  of  G.  W. 
Coo))er,  the  plaintiff  on  the  record,  or  in  his  own  name,  as  assignee,  if 
he  be  in  fact  the  assignee  of  the  judgment. 

Richardson,  O'Neall,  Evans  and  Wardlaw,  JJ,,  concurred. 


*15S]    *Faulknee  &  Rogers  vs.  The  Augusta  Insurance  Company. 

A  party  insiiriiifj  goods,  &o.,  with  an  insurance  company,  is  not  obliged  to  demand 
payiiH'iit  of  tlio  contributors,  before  bringing  suit  against  the  insurers. 

Tried  before  Eari.e,  J.,  at  Charleston,  June  Term,  1841. 

This  was  nil  action  on  a  policy  of  insurance,  made  in  Charleston,  and 
dated  7th  April,  1«4(»,  by  which  the  defendants  underwrote  $G,270,  on 
.iroods  per  schooner  Ksloll,  at  and  from  Charleston  to  Mobile.  It  was 
proved  tliut  the  Estell,  on  the  -JUth  April,  1810,  struck  on  the  Florida 


*158]      FAULKNER  &  ROGERS  VS.  INSURANCE  COMPANY.         451 

Keef,  and  was  taken  off  by  the  wreckers,  carried  into  Key  West,  and 
libelled  for  salvage,  and  part  of  the  goods  sold  to  pay  the  salvage  and 
expenses.  On  the  arrival  of  the  vessel  at  Mobile,  the  captain  took  au 
average  bond,  in  which  Harrison  &  Blair,  the  agents  of  the  plaintiffs, 
joined.  The  average  was  adjusted  by  Mr.  Stringer,  an  insurance  broker 
— the  plaintiffs  were  credited  with  §1,735  34,  as  their  loss,  being  the 
amount  of  their  goods  sold,  and  charged  with  $SV9  52,  for  their  con- 
tributory part  of  the  average;  the  difference  between  those  suras,  say 
$S55  82,  was  the  amount  to  be  contributed  towards  the  $1,735  34,  by  the 
ship  and  the  other  owners  of  merchandise. 

No  measures  were  taken  to  recover  the  contribution,  and  the  captain 
of  the  Estell  sailed  without  settling,  but  on  the  1st  July,  1840,  a  demand 
was  made  on  the  defendants,  and  this  action  brought  to  recover  the  total 
amount  of  the  loss. 

The  defendants  proved,  that  in  this  place  the  custom  in  such  cases  is,  to 
receive  from  the  vessel  and  owners  of  the  cargo  their  contribution,  and 
from  the  insurers  the  balance,  which  is  the  average  loss. 

His  Honor  charged  the  jury,  that  the  plaintiffs  were  entitled  to  recover 
from  the  insurers  the  total  loss,  and  were  not  obliged  to  wait  for  the 
adjustment  of  the  average,  and  the  jury,  under  the  instructions  of  the 
Court,  found  a  verdict  for  the  plaintiffs  for  $1,735  34,  with  interest  from 
1st  September,  1840. 

The  defendants  moved  to  set  aside  the  verdict,  and  for  a  new  trial,  unless 
the  difference  between  $1,735  34,  and  §879  52,  be  remitted,  on  the  following 
grounds : 

*lst.  That  tlie  loss  of  the  plaintiffs  was  a  general  average,  and  the  r^;.,  -f, 
amount  was  $879  52.  L'  ^->-^ 

2d.  That  the  insured  had  an  ample  remedy  for  the  recovery  of  the  contribu- 
tion due  to  them  in  Mobile,  and  would  have  recovered  if  they  had  not  been 
insured.  But  if  they,  or  their  agents,  suppressed  the  demand  against  the 
vessel  and  cargo  from  favor,  it  was  a  fraud  on  the  insurers ;  and  if  they  did  so 
from  negligence,  the  consequences  of  their  neglect  should  be  borne  by  them- 
selves; and  that  the  verdict  should  have  been  for  $879  52,  and  no  more. 

Curia,  jyer  Richardson,  J.  This  case  presents  but  one  question  of 
law  :  were  the  insured  obliged  to  wait  for  the  adjustment  of  the  average 
loss  ;  or  to  demand  the  contribution  of  the  other  shippers,  or  in  any  way 
to  pursue  the  contributors,  before  demanding  the  total  loss  of  their  own 
shipment,  against  the  insurers  ?  No  doubt  is  entertained  that  such  loss 
is  embraced  by  the  policy.  The  question  is  upon  the  condition  and  time 
of  demanding  it.  And  as  little  question  is  made,  that  either  the  insured  or 
insurers  may  recover  of  the  other  shippers,  their  respective  contributions 
according  to  the  adjustment,  made  and  average  bonds  taken  in  this  case. 
But  each  of  the  present  parties  would  avoid  that  alternative,  and  put  it 
upon  the  opposite  side.  Which  has  the  legal  right  to  choose  ?  This 
question  is  for  our  adjudication.  Little  argument  can  be  drawn  from  the 
conduct  of  the  captain  of  the  vessel.  He,  in  case  of  loss,  is  the  agent  of 
all  concerned.  2  Mass.  561.  Until  abandonment,  in  all  cases,  the" goods 
saved  remain  the  property  of  the  insured,  and  he  is,  of  course,  bound, 
in  justice,  to  do  what  he  can  to  diminish  the  ultimate  loss  of  the  under- 
writers;  (Mass.  614,)  the  true  and  unavoidable  loss  being  all  he  is 
entitled  to.  But  when  the  loss  has  occurred  within  the  policy,  it  becomes 


452  CHARLESTON,  FEBRUARY,  1842.      VOL.  IL  [    xo.v 

the  loss  of  the  underwriters  :  and  the  rig:ht  to  recover  vests,  in  the 
insured.  Both  the  right  and  liability  are  in  virtue  of  the  policy,  which 
is  a  contract  of  indemnity ;  and  they  both  follow  at  the  moment  of  the 
loss.  Can,  then,  this  right  or  liability  be  suspended  by  the  obligation 
to  do  what  may  be  done  for  the  insurers,  in  a  matter  which  may  be  done 
as  well  by  themselves  ?  The  average  bond  is  taken  in  order  to  divide 
*iAm  ^^®  '°^^-     '^'^  decide  *whose  is  the  loss,   decides  which  party  is 

-■  obliged  to  pursue  the  contributors  for  his  own  interest  and  neces- 
sity. It  is  true,  that  the  insured  may  do  so.  But  it  does  not  follow, 
that  he  has  his  immediate  right  to  indemnity  from  the  insurers  suspended, 
unless  he  does  so.  Like  all  men  who  have  two  remedies,  he  make  take 
either,  at  his  own  discretion,  or  even  pursue  both,  until  indemnified  by 
one  or  the  other.  But  no  further.  This  is  a  general  principle  of  the 
common  law,  and  must  have  its  influence  upon  all  contracts  which  are 
submitted  for  their  mere  legal  intendment,  or  constructive  obligations. 
Again  :  the  right  of  the  insured  to  demand  contribution  of  the  other 
shippers,  arises  from  his  right  of  property  in  the  goods  lost,  for  the  com- 
mon good  of  all  the  shippers.  It  is  independent  of  the  policy,  as  in  the 
case  of  jettison,  where  there  is  no  insurance.  But  if  there  be  any 
insurance,  the  insurers  come  in  for  the  ultimate  benefit.  As  to  the 
authority  of  decided  cases,  and  the  opinions  of  respectable  jurists,  they 
leave  the  question  very  open  for  the  judgment  of  the  Court.  In  New  York 
and  Massachusetts,  (1  Carne's,  212;  1  Johns.  412;  6  Mass.  3lS,)  it 
has  been  decided  in  favor  of  the  right  claimed  by  the  insured,  to  demand 
indemnity  of  the  insurers,  immediately.  Chancellor  Kent  recognizes 
this  as  the  proper  rule  of  law.  And  Abbott,  page  396,  informs  us  that, 
in  England,  the  average  loss  is  commonly  paid  in  the  first  instance,  by 
the  insurers.  These  authorities  have  weight  on  the  other  side.  la 
Pennsylvania,  (4  Bin.  502,)  the  same  question  has  been  ruled  in  favor  of 
the  insurers.  The  insured,  in  the  first  instance,  is  to  demand  the  con- 
tribution, and  some  jurist  recommend  this  as  consonant  to  justice,  from 
the  usual  position  of  the  insured,  and  the  obligation  to  do  all  that  can  be 
done  for  the  insurers.  It  could,  therefore,  be  scarcely  an  error,  were  we 
to  decide,  from  mere  authority,  for  either  party,  in  order  to  lay  down  the 
general  rule  which  the  Court  has  now  to  do.  But  looking  at  the  strict, 
legal  right  of  the  insured,  and  to  the  unquestionable  liability  of  the 
insurers  upon  the  policy,  as  a  contract  of  indemnification  to  the  former, 
the  Court  does  not  perceive  how  the  insured  can  be  suspended  in  their 
right  of  action,  by  the  mere  qualified  obligation  first  to  deiuand  contri- 
*1G11  '^^"^'*^"   °^  ^'"^   other   shippers.     This  is  often  *done  from  self- 

-i  interest,  or  justice  to  the  insurers.  But  in  many  instances,  the 
obligation  to  do  so  might  be  inconvenient — perplex  with  suits,  and 
impede  the  very  object  aimed  at  by  the  policy  of  insurance — immediate 
reimbursement  of  the  insured,  in  the  value  of  the  goods  lost.  In  order 
that  the  voyage  might  not  be  retarded,  or  its  fruits  lost,  which  would  be 
contrary  to  tlie  general  ends  of  insurance,  to  extend  commerce  and 
advance  its  success.  And  these  are  to  be  answered  by  the  immediate 
reimbursement  promised  by  the  insurers.  I  would  think,  therefore,  that 
tlio  adjustment  of  average  loss  among  the  different  shippers,  and  the 
average  bond,  are  to  be  considered  as  a  counter  indemnity  to  the 
insurers,  afier  i»aying  the  whole  loss.     And  that  this  view  of  their  office 


*l(;i]  MENLOVE    VS.    OAKES.  453 

gives  the  foundation  of  the  true  rule ;  that  tlie  insured  are  not  obliged  to 
demand  jiayment  of  the  contributors,  before  suing  the  insurers. 
The  motion  is  therefore,  dismissed. 

O'Neall,  and  Evans,  JJ.,  concurred. 

Wabdi^\w,  J.,  dissenting.     I  dissent  from  the  opinion  of  the  majority 
of  the  Court. 

It  is  contrary  to  the  good  faith  required  in  all  contracts  of  insurance, 
for  the  insured  to  put  the  underwriters  in  a  worse  condition  than  tlie  in- 
sured would  have  been  in,  if  no  insurance  had  been  made.  The  excess  of 
the  plaintiffs'  goods  sold  for  salvage,  over  their  share  of  the  average 
was  in  truth  an  advance  made  by  them  for  the  other  shippers  ;  and  the 
average  bond  taken  by  the  master,  the  common  agent,  was  a  mutual 
covenant,  signed  by  all  the  persons  concerned,  binding  themselves  to  pay 
each  his  contributary  share  of  the  average  on  demand.  The  agents  of 
the  plaintiifs,  when  they  and  all  others  concerned,  were  together  in  the  port 
of  destination,  after  adjustment  of  the  average,  do  not  appear  ever  to 
have  made  a  demand,  but  have  contented  themselves  by  sending  the 
adjustment  and  average  bond  to  the  underwriters,  looking  to  them  for 
entire  indemnity.  Tlie  underwriters  may  pay  and  may  recover  from 
those  bound  to  make  contributions,  by  suits  in  the  name  of  the  plaintiffs, 
but  now  that  the  shippers  are  separated,  what  hope  is  there  for  the  under- 
writers that  *they  will  be  able,  at  reasonable  expense,  to  procure  ^^!;1/»c> 
remuneration  ?  A  demand  by  the  agent  of  the  plaintiffs,  at  the  L 
time  when  they  should  have  made  it,  might  have  effected  complete  justice 
without  expense  or  circuity;  and  I  think  that,  without  showing  that  this 
demand  was  ineffective,  or  was  in  some  way  excused,  the  plaintiffs  should, 
not  be  permitted  to  recover  from  the  underwriters  more  than  their  share 
of  the  average.  2  Marshall  on  Insurance,  5-47  ;  2  Phil,  on  Insurance, 
127. 

Butler,  J.,  concurred  in  the  dissenting  opinion. 

Petrigru  and  Lesesne,  for  the  motion.       H.  A.  De  Saussure,  contra. 


Edward  Menlove  vs.  Samuel  &  Z.  B.  Oakes. 

Where  one  of  two  parties,  or  joint  contractors,  was  served  with  a  writ  in  the  State 
of  New  York,  and  judgment  by  the  statute  of  New  York  was  obtained  against 
both;  afterwards,  suit  was  brought  in  South  Carolina,  against  the  party  not 
served.  JJeld,  that  the  defendant  in  South  Carolina,  was  not  concluded  by  the 
recovery  in  NevT  Y'ork  ;  that  it  was  only  prima  fucie  evidence  of  the  extent  of 
his  liability,  but  that  he  nught  avail  himself  of  any  defence,  which  he  might 
have  had  to  the  original  cause  of  action.  It  was  further  held,  that  the  judg- 
ment, outsi<le  of  New  York,  was  the  same  as  if  no  judgment  had  tliere  ever 
been  pronounced  against  the  defendant,  not  within  her  jurisdiction;  that  the 
party  must  fall  back  on  the  original  cause  of  action ;  and  that  the  statute  of 
limitations,  which  is  the  "/ex  fori"  would  then  be  a  bar  to  the  plaintilT's  cause 
of  action. 

Before  O'Neall,  J.,  at  Charleston,  May  Term,  1840. 
Thi>  was  an  action  of  debt  on  a  judgment  recovered  in  New  York, 


454  CHARLESTON,  FEBRUARY,  1842.      VOL.  II.  [*162 

under  the  following  circumstauces  The  note  upon  which  the  judgment 
was  based,  was  a  joint  note.  The  defendant  Z.  B.  Oakes,  was  alone 
served.  By  the  law  of  New  York,  in  a  suit  on  a  joint  contract,  if  one 
of  the  parties  be  served,  the  plaintiff  may  proceed  to  judgment  against 
^,„„-,  both,  and  have  execution  against  the  joint  *goods  of  both,  and 
-J  may  so  levy  it,  or  of  the  goods  of  the  party  served  Against 
the  party  served,  the  judgment  is  declared  to  be  final  and  conclusive,  but 
to  the  party  not  served  the  right  is  reserved  of  making  any  defence, 
which  he  could  to  the  original  cause  of  action.  Under  this  statute,  it 
has  been  held  in  New  York,  that  an  action  of  debt  would  lie  against  the 
party  not  served,  on  the  judgment,  but  that  he  could  make  to  it  any  de- 
fence which  he  might  to  the  original  cause  of  action. 

The  defendant," Samuel  Oakes,  pleaded  specially,  the  circumstances 
under  which  the  judgment  was  obtained,  the  law  of  New  York,  and 
statute  of  limitations.  It  appeared  that  in  1834,  the  note  on  which  the 
recovery  was  had,  was  in  the  hands  of  the  plaintiff's  counsel  for  col- 
lection ;  that  defendant  then  promised  to  pay  it.  The  judgment  in 
New  York  was  recovered  in  1839,  and  this  suit  was  afterwards  brought. 
The  presiding  Judge  was  of  opinion,  that  the  plaintiff  could  not  recover 
against  Samuel  Oakes  ;  and  ruled,  that  as  to  him,  the  plaintiff's  action 
stood  upon  the  same  ground,  as  if  it  was  upon  the  original  cause  of 
action,  and  as  against  that,  the  statute  of  limitation  would  protect  him. 
Upon  the  Court's  expressing  these  views,  the  plaintiff's  counsel  submitted 
to  a  nonsuit,  and  moved  the  Appeal  Court  to  set  it  aside,  upon  various 
grounds,  which  will  be  fully  understood  by  the  opinion  of  the  Court. 

Mr.  Tliompson,  for  the  motion.  Cited  and  relied  on  2  Rev'd.  Stats.  N.  Y.,  377  ; 
6  Cow.,  G95.  6  Wend.,  206 ;  6  J.  R.,  97  ;  2  .J.  R.,  87.  Conld  the  defendant,  Z. 
B.  Oakes,  in  New  York,  plead  the  statute  of  limitations  ?  cited  2  Bail.,  217;  1  Hill, 
439;  1  Faust,  214,  declares  suits  against  a  partnership  good,  when  one  is  out  of 
the  jurisdiction,  and  the  other  is  served  within  the  State.  The  original  contract 
is  merged;  18  .1.  R.,  459;  1  Bail.,  242;  1  Wend.,  311;  1  Wash.  Circuit  Court 
decisions,  17;  2  Pet.  Dig.,  545;  13  76.,  312. 

Mr.  Frost,  contra.  Said,  what  is  the  effect  of  a  recovery,  against  the  partnership, 
where  one  was  not  served?  In  Miller  vs.  ^ filler,  1  Bail.,  242,  the  rule  is,  clearly, 
*1641  *'''^*^  a  party  can  only  be  concluded  who  is  served,  9  Mass.,  *4ti2.  It  is  com- 
petent for  the  Court  to  inquire,  as  to  the  jurisdiction,  both  as  to  subject 
and  ])arty  ;  cited  13  J.  R.,  192.  What  is  the  effect  of  the  judgment  in  New  York  ? 
According  to  the  course  of  common  law,  none  but  a  party  properly  in  Court  is 
concluded. 

In  outlawry,  although  judgment,  it  is  not  a  confession,  2  Sell.,  277  ;  Plow,  941  : 
1  Wils.,  78;  1  Stark.,  IGl ;  22  Wend.,  260.  The  Act  of  New  York  was  in  the 
]ila(c  of  outlawry.  It  should  be  construed  as  our  own  act,  upon  the  same  subject. 
It  ol/viates  the  effect  of  non-joinder.     6  Stat,  at  Large,  211,  repeals  the  former. 

Curia,  per  O'Xkall,  J.  The  statute  of  New  York,  2  Revised 
Statutes,  377,  ])ro\j^des  in  its  first  section,  that  "  in  actions  against  two 
or  more  persons  upon  any  joint  dbligation,  contract  or  liability,  if  the 
jiroccss  issued  against  all  the  defendants,  s/m//  have  been  duly  served 
iijxHi  rilhcr  of  litem,  the  defendant  so  served  shall  answer  to  the  plain- 
tiff, and  in  such  case  the  judgment,  if  rendered  in  favor  of  the  plaintiff, 
shall  be  against  all  flic  defendants,  in  the  same  manner  as  if  all  had  been 
served  with  process." 

Jn  the  second  section,  it  is  provided,  "  such  judgment  shall  be  conclu- 


*164]  MENLOVE  VS.   OAKES.  455 

sive  evidence  of  the  liability  of  the  defendant,  who  was  personally  served 
with  process  in  the  suit,  or  who  appeared  therein,  but  adainat  every 
other  defendant,  it  shall  be  evidence  only  of  the  extent  of  the  plaint  iff"'. -i 
demand,  after  the  liability  of  such  defendant  shall  have  been  estab- 
lished by  other  evidence. 

The  3d  and  4th  sections  are  intended  to  so  reprulate  the  execution  to 
be  issued  under  such  judgment,  as  to  give  it  full  force  and  ell'ect  against 
the  defendant  served,  but  to  protect  from  its  operation  the  defendant  not 
served  in  person  and  properly,  except  so  far  as  he  might  be  interested  in 
property  belonging,  in  i)artnership,  to  him  and  the  defendant  served. 

Reading  the  statute  without  the  aid  of  note  or  comment,  I  do  not  per- 
ceive how  there  ever  could  have  been  a  dispute,  that  as  against  the  defend- 
ant, the  judgment  was  anything  more  than  one  in  form,  and  tliat  in  substance 
it  concluded  nothing  against  the  person  not  served.  For  the  provisions 
"against  eveiy  other  defendant,  it  shall  be  *evidence  only  of  the  r^,-^(>r^ 
extent  of  the  plaintiff's  demand,  after  the  liability  of  such  defend-  L 
aut  shall  have  been  established  by  other  evidence,"  plainly  shows,  that  it 
was  intended  only  as  a  final  judgment  against  the  defendant  served,  and 
that  every  thing  was  left  open  against  the  other.  If  this  was  not  so,  why 
was  it  provided  that  it  should  not  even  be  evidence  of  the  extent  of  the 
])laintiQ's  demand,  until  after  his  liability  was  established  by  evidence  ? 
This  was  ])utting  the  plaintiff  to  jirove  his  case  from  the  beginning. 
When  this  is  so,  there  can  be  nothing  like  a  judgment  in  its  appropriate 
legal  sense.  For,  according  to  that,  it  is  the  final  evidence  of  the  Court 
on  the  rights  of  the  parties.  Here,  however,  the  whole  matter  is  yet  to 
be  sifted,  before  the  Court  can  decide  that  the  defendant  is  at  all  liable. 
Pveferring,  however,  to  the  New  York  cases,  and  being  governed  by 
them  alone,  I  apprehend  that  the  same  result  will  be  obtained. 

In  Carman  vs.  Toivnsend,  6  Cowan,  695,  and  6  Wend.,  206,  it  was 
ruled  by  the  Supreme  Court  and  Court  of  Errors,  that  on  such  judgment, 
an  action  of  debt  might  be  maintained  against  the  defendant  not  served. 
That  this  conclusion  was  adopted,  more  to  save  a  remedy  to  the  plaintiff 
against  the  defendant,  than  any  thing  else,  is  apparent  from  the  reasoning 
of  Chancellor  AValworth,  in  the  Court  of  Errors,  (6  Wend.,  209.)  For 
he  holds,  that  the  original  promise  was  merged  in  the  judgment,  and 
hence,  if  the  plaintiff  could  not  maintain  in  form  an  action  of  debt  founded 
on  the  judgment,  he  would  be  without  remedy.  After  examining  the 
subject,  he  concludes  "the  legislature  un(p;estionably  had  no  other  ol)ject 
in  view,  than  to  save  useless  expense,  and  at  the  same  time,  to  protect 
the  rights  of  the  absent  defendant  in  that  suit,  without  discharging  his 
liability  to  the  plaintiff,  in  an  action  on  the  judgment."  lie  then  goes 
on  to  answer  the  objection,  that  this  conclusion  would  dei)rive  the 
defendant  of  his  defence,  and  remarks,  "it  has  never  yet  been  decided, 
that  by  a  course  of  pleading,  adapted  to  the  particular  case,  the  defendant, 
who  is  arrested  in  a  suit  on  such  judgment,  may  not  avail  himself  of  any 
defence,  which  it  would  have  been  competent  for  him  to  urge  in  the 
original  action,  bad  he  been  brought  into  Court." 

*ln  Hal lidaj/ vs.  jM'Bougall,  22  Wend.,  270,  the  Chancellor  r^^QQ 
said,  "when  an  action  is  brought  against  several  persons,  as  joint  *- 
debtors,   all   of  whom  appear  and   deny  their  joint  indebtedness,   the 
plaintiff  is  obliged  to  make  out,  by  legal  evidence  against  each,  not  only 


4:56  CHARLESTON,  FEBRUARY,  1842.      VOL.  IL  [*166 

that  he  is  personally  liable  for  the  debt,  but  also,  that  he  is  jointly  liable, 
with  all  his  co-defendants;  but  when  part  of  the  defendants  admit  their 
individual  and  joint  liability,  either  by  their  pleading  or  otherwise,  or 
when  they  are  outlawed,  or  proceeded  against  as  absentees,  by  a  return 
of  the  capias,  by  the  sheriff,  as  to  them  not  found,  or  that  no  pergonal 
judgments  can  be  rendered  in  the  suit  against  them,  on  their  individual 
property,  the  plaintiff  is  only  to  produce  evidence,  which  will  be  sriffi- 
cient,  as  against  those  who  appear  and  defend  the  suit,  to  establish 
their  pint  liability,  with  their  co-defendants. 

After  these  expositions  of  the  statute,  by  an  eminent  New  York  jurist, 
sustained  by  the  Supreme  Court  and  the  Court  of  Errors,  I  do  not  per- 
ceive how  it  could  be  pretended  there,  that  the  defendant  not  served, 
when  arrested,  could  not  plead  the  statute  of  limitations  to  the  action. 
For  it  is  a  defence,  showing  that  the  defendant  is  not  now  liable  to  be 
charged  with  the  original  debt.  It  is  a  matter  not  at  all  concluded  by 
the  former  recovery.  For  the  party  now  setting  it  up,  was  not  before 
the  Court,  and  it  follows,  if  it  was  not  necessary  that  there  should  be 
proof  in  the  former  suit  to  charge  him,  none  of  his  rights  can  be,  by  the 
conclusion  of  that  suit,  in  any  way  affected.  But  when  to  this  is  added, 
the  fact  that  the  statute  was  intended  merely  to  enable  the  plaintiff  at 
law,  to  collect  his  debt,  if  he  could,  out  of  the  parties  served,  but  at  the 
same  time,  to  protect  the  rights  of  the  absent  parties,  there  would  seem 
to  be  no  room  to  doubt,  that  by  proper  pleading  in  an  action  of  debt  on 
that  judgment,  in  the  State  of  New  York,  any  defence  might  be  set  up 
by  the  defendant,  not  served  in  the  original  case,  which  it  would  be  com- 
yietent  for  him  to  make  to  that  case,  if  it  was  now  to  be  tried.  Indeed,  I 
think,  the  true  view  in  New  York,  is  to  regard  the  defence  by  the  defend- 
ant, to  the  action  on  the  judgment,  in  the  same  point  of  view,  as  if  the 
*ir71  oi"'P^i"id  action  was  trying,  '*'and  considered  as  commenced  against 
-'  the  defendant  when  he  was  served  with  process. 

But,  be  this  as  it  may,  it  is  very  clear,  that  the  judgment  thus  obtained 
in  New  York,  can  have  no  exira-territorial  effect.  For,  as  against  the 
jv.irty  not  served,  it  cannot  be  regarded  as  a  judgment,  further  than  as  a 
mere  means  by  which  the  partnership  effects  in  New  York,  are  made 
liable  to  the  joint  debt.  In  this  respect,  it  is  analogous  to  judgments  in 
attachment,  or  decrees  pro  confesso,  against  absent  defendants  in  equity. 
The  ))rinciple  here  advanced,  is  very  fully  illustrated  and  enforced  in 
Millrr  vs.  Miller,  1  Bail.  242. 

In  Jhiclner  vs.  Archer,  1  McMull.,  85,  86,  where  the  question  was  as 
to  the  validity  of  an  Ordinary's  decree,  against  a  defendant  residing  out 
of  the  State,  Karle,  J.,  in  pronouncing  the  judgment  of  the  Court,  said, 
"  it  is  fssenlial  to  the  validity  of  a  judgment,  that  the  Court  should  have 
jiirisdieiioii  of  the  person  and  the  suljject  matter.  AVhen  such  is  the  fact, 
the  judgment  is  conclusive  between  the  same  party  and  those  in  privity 
with  them,  upon  all  the  matters  in  controversy,  which  it  purports  to  have 
deciderj.  Hut  I  apprehend  the  want  of  jurisdiction  may  be  set  up 
against  a  jmlgment,  whenever  it  is  attempted  to  be  enforced,  as  a  new 
and  Hul)stantive  cause  of  action,  or  where  a  benefit  is  otherwise  inciden- 
tally claiincd  under  it. 

In  Lr.starjrtte,  Ordinary,  vs.  Executors  of  Ford,  1  McMullen,  80, 
note,  which  was  an  action  on  an  administration  bond  against  the  surety — 


*16*]  MOORE   VS.    BURBAGE.  457 

the  principal  (the  administrator)  was  absent  from  the  State — it  was 
attem))t(cl  to  charge  tlie  surety  upon  a  decree  in  Equity,  obtained  apjainst 
the  absent  defendant,  by  publishinfr  a  rule.  It  was  held,  that  the  decree 
could  only  operate  u])on  the  matter  in  dispute,  on  the  property  of  the 
absent  defendant,  within  the  State.  In  that  case,  it  was  said,  at  ])a2:e  87, 
"  for  as  to  the  defendant  himself,  so  long  as  he  remains  beyond  the  juris- 
diction of  this  Court,  it  cannot  be  enforced  by  any  action  on  it,  in 
another  State." 

From  these  cases,  it  may  be  reduced  as  a  settled  principle,  that  a 
judgment  like  the  one  before  us,  is,  outside  of  New  York,  the  same  as  if 
no  judgment  had  there  ever  been  pronounced  against  the  defendant,  not 
within  her  *jurisdiction.  So  considering  the  case,  the  party  r^jgg 
must  fall  back  on  the  original  cause  of  action ;  and  then  there  is  L 
no  doubt,  in  any  way  in  which  it  may  be  put,  that  the  statute  of  limita- 
tio!is,  which  is  the  "  lex  fori,^'  is  a  bar  to  the  plaintiff's  action.  The 
motion  is  dismissed. 

RicnARDSoN,  Evans,    Earle,  Butler,  and    Wardlaw,  JJ.,  con- 
curred. 

As  to  the  statute  of  limitations  affecting  the  judgment  of  anoth(?r  State,  see 
Napier  vs,  Gidion,  in  Errors,  Sp.  E-j.,  215.     ^1h. 


Wm.  Moore,  Assignee,  vs.  J.  C.  Burbage. 

Where  there  has  been  a  general  demurrer  to  a  plea,  and  a  joinder  in  demurrer, 
and  the  demurrer  has  been  sustained,  leave  will  not  be  given  to  plead  over. 

Before  Earle,  J.,  Horry,  Eall  Term,  1841. 

This  was  an  action  of  debt,  on  a  single  obligation  by  the  the  defend- 
ant, to  pay  Joseph  A.  Burbage,  or  order,  the  sum  of  six  hundred  dollars, 
and  assigned  to  the  plaintiff;  plea,  that  the  defendant  had  paid  up  the 
sum  of  money,  and  discharged  himself  from  the  said  obligation,  accord- 
ing to  the  tenor  and  effect  of  the  same.  That  the  said  obligation  was 
given  to  the  said  Joseph  A.  Burbage,  to  pay  to  one  James  R.  Burbage, 
which  said  sum  of  money  the  said  Joseph  A.  owed  to  the  said  James  R., 
and  that  he,  the  said  defendant,  has  paid  to  the  said  James  R.  Burbage, 
the  said  sum  of  money,  according  to  the  contract  of  the  parties,  when  the 
said  obligation  was  made  by  this  defendant.  Demurrer  to  i)leas  and 
joinder  in  demurrer.  The  ])lea  was  overruled  as  insufficient;  and  there- 
upon, the  defendant  moved  for  leave  to  plead  payment,  (.so/c//  ad  diem 
de  novo,)  which  was  refused  ;  and  the  plaiutiflf  had  judgment  to  recover 
his  debt,  with  the  interest  and  costs. 

*The  defendant  gave  notice  that  he  would  move  the  Court  of  Appeals  pipq 
to  reverse  i/iejiidf/ment  on  demurrer  in  this  case,  on  the  grounds  :  •- 

1.  Because  the  plea  overruled  was  substantially  a  good  plea  of  payment,  and 
any  defect  iu  the  form  could  only  have  beeu  taken  advantage  of  by  special 
demurrer. 

2.  Because  his  Honor  the  presiding  Judge,  ought  to  have  granted  defendant's 
motion  for  leave  to  strike  out  the  said  plea,  all  besides  the  general  plea  of 
payment. 

3.  Because  his  Honor  ought  to  have  granted  defendant's  motion  to  plead  over. 


4:58  CHARLESTON,  FEBRUARY,  1842.      YOL.  II.  [*169 

Curia,  per  O'Xeall,  J.  There  can  be  no  doubt  that  the  defendant's 
plea  was  bad,  on  general  demurrer.  For  if  it  had  stopped  at  "  that  the 
defendant  had  paid  up  the  said  sum  of  money,  and  discharged  himself 
from  the  said  obligation,  according  to  the  teuor  and  effect  of  the  same," 
this,  although  untechnically  pleaded,  yet,  being  in  substance  an  allegation 
of  "  payment  at  the  day,"  might  have  been  sustained.  -  But  the  plea  went 
on  to  show  how  the  payment  was  made,  and  stated  a  payment  to  one  not 
entitled  to  receive  ;  this  clearly  rendered  the  plea  bad  in  substance,  and 
hence  the  general  demurrer  was  properly  sustained. 

But  it  is  contended,  that  the  motion  to  plead  over  or  amend,  ought  to 
have  been  allowed.  In  MacFarland  vs.  Dean,  Cheves  67,  it  is  said  "a 
judgment  in  special  demurrer  is  nothing  more  than  that  the  party  against 
whom  it  is  pronounced  should  plead  over  or  amend,  on  payment  of  costs." 
This  is  a  departure  from  the  English  rule.  For  there  the  judgment  would 
be  final,  unless  the  party  obtained  leave  to  amend.  The  change  is,  how- 
ever, necessary,  under  our  free  allowance  of  amendments,  and  hence  it 
was  thought  advisable  to  consider  special  demurrers  as  opposing  an 
obstacle  of  form  merely,  which  might  be  obviated  by  pleading  over  or 
amending.  This  was,  however,  no  great  departure  from  the  English 
precedents.  For  the  amendment  after  special  demurrer,  joinder,  argu- 
ment, and  even  judgment  thereon,  was  freely  allowed  by  the  English 
*17m  C^^iii'ts,  as  will  be  seen  by  referring  to  Halton  vs.  ^Walker,  2 
-■  Stra.  846  ;  Pollyblank  vs.  Hawkins,  Doug.  330,  and  Sexton  vs. 
Rohison,  Doug    620. 

But  after  a  joinder  in  general,  demurrer,  and  judgment  thereon,  it  may 
be  laid  down  as  a  general  rule,  that  an  amendment  will  not  be  allowed,  (a) 
In  Cates  vs.  Curreton,  Harp.  Law  Rep.  400,  leave  was  given  to  amend 
after  a  joinder  in  demurrer;  but  that  was  after  it  had  been  ascertained 
the  case  could  not  be  tried,  and  therefore  no  delay  could  follow  from 
allowing  it. 

In  this  case,  the  trial  was  in  progress,  and  to  have  allowed  an  amend- 
ment, or  that  the  defendant  should  plead  over,  might  have  delayed  the 
plaintiff  by  compelling  him  to  seek  for  evidence  to  meet  a  defence,  into 
which  he  knew,  from  the  state  of  the  pleadings  at  the  commencement  of 
the  trial,  the  defendant  could  not  go.  This  is  a  decisive  reason  why  the 
amendment  cannot  be  allowed. 

In  addition  to  that,  we  know  from  the  facts  stated  in  the  plea,  which 
has  been  ruled  to  be  bad,  of  what  the  defence  was  made  up.  It  is  plain 
from  them,  that  the  payment  alleged  to  have  been  made,  could,  never,  in 
any  shape,  avail  the  defendant.  There  would  be  no  proi)riety  (if  we 
thought  we  had  the  power)  to  allow  an  amendment  to  be  made,  which 
would  present  in  form  a  good  legal  defence,  altogether  unsupported  by 
the  fact. 

The  motion  is  dismissed. 

Evans,  Buti.kr  and  Wahdlaw,  J  J.,  concurred. 
]\Ir.  Jlarllce,  for  the  motion. 

(«)  .Soe  10  Rirh.  371,  04;  G  Rich.  27,  395;  5  Rich.  3G1  ;  4  Rich.  14,  23. 
Contra,  7  KL-li.  4:i2 ;  5  Stiob.  157 ;  1  McM.  291  ;  1  N.  &  McC.  88,  108  ;  3  Hill, 
197;  Chc'v.  94.. 


171]  SAMS   VS.    RHETT.  459 


*B.  B.  Sams  vs.  Albert  Riiett.  E*!*^! 

Plaintiff,  one  of  the  brothers  of  Francis  Sams,  (deceased,)  paid  to  the  defendant, 
attorney  for  tlie  executors  of  the  late  Governor  Hopkins,  of  Geor^ria,  S'-l^,  who, 
it  appears,  had  a  judgment  against  the  said  Francis  Sams,  for  Sl(i:^l  31,  with 
interest,  from  18th  February,  181 S,  besides  costs.  At  the  time  of  the  paj-ment  of 
the  money  to  defendant,  by  plaintiff,  a  'compromise  was  effected  between  them, 
and  this  sum  of  881;"),  was  to  be  considered  as  an  entire  discharge  of  tlie  whole 
debt,  or  defendant  was  to  procure  from  the  executor  an  assignment  of  the  case 
to  plaintiff,  as  plaintiff  might  elect. 

Subsequent  to  the  date  of  the  compromise,  defendant,  as  attorney  of  the  executors, 
assigned  to  plaintiff  the  case  above  alluded  to,  but  plaintiff,  after  cfnisultatiou 
with  counsel,  refused  to  accept  defendant's  assignment,  as  he  was  not  tlie  attor- 
ney, in  fjict,  of  the  owner  of  the  case,  or  even  attorney  on  record  in  the  case. 

Defendant  refused  to  become  responsible  for  the  amount  paid,  but  promised  jilain- 
titf,  tliat  he  would  not  pay  over  the  amount  he  had  received,  until  he  procured 
an  assignment  to  him  from  tlie  executors  of  Hopkins.  Some  short  time  after 
this  promise  of  defendant,  to  procure  the  assignment  of  the  case,  or  that  he  would 
withiiold  the  money,  defendant  i^aid  over  the  money  to  the  executor,  C.  H. 
Hojjkins.  Under  the  circumstances  of  this  case,  it  was  held,  first,  that  this 
was  a  personal  undertaking,  on  the  part  of  defendant,  and  was  founded  on  a 
sufficient  consideration.  It  was  held,  secondly,  that  the  cause  of  action,  which 
accrued  to  the  plaintiff,  on  the  non-performance  of  this  personal  undertaking  of 
defendant,  was  barred  by  the  statute  of  limit/itions.  Wore  tlian  four  years  having 
elapsed,  from  the  pa^nnent  of  the  money,  by  Rhett  to  Hopkins,  and  the  bringing 
suit. 

Before  "Wardlaw,  J.,  at  Gillisonville,  January,  Extra  Court,  1842. 

The  following-  is  the  history  of  this  case  : 

In  January  or  Feljvuary,  1836,  Charles  H.  Hopkins,  son  of  Gov. 
Francis  Hopkins,  late  of  Georgia,  came  to  Beaufort,  bringing  with  him 
the  exem))lilication  of  a  judgnient,  obtained  November,  1823,  in  the 
Superior  Court  of  M'Intosh  county,  Georgia,  by  John  Floyd,  Richard 
llichardson,  John  Carnochan  and  W.  Carnochan,  qualified  execntors  of 
Francis  Hopkins,  against  Francis  Sams,  for  $1031.31,  with  interest  from 
IStli  February.  1818,  and  $12  costs,  upon  a  bond  made  by  Francis  Sams, 
jiayable  to  "William  Robertson,  and  assigned  to  Francis  Hopkins.  As 
Charles  H.  Hoj>kin3  testified,  he  was  authorized  to  take  all  proper  steps 
for  the  collection  of  the  debt  ascertained  by  the  said  judgment,  bat  it  did 
not  appear  that  he  ever  had  a  power  of  attorney.  Francis  Sams  had 
removed  from  Georgia,  and  died  in  this  State,  before  1836.  The 
defendant,  then  an  attorney  at  law,  under  the  name  of  Albert  Moore 
Smith,  was  retained  by  C.  H.  Hopkins.  A  citation  to  procure  adminis- 
tration of  *the  estate  of  Francis  Saras,  was  sued  out,  and  some  rji^iw.-, 
proceedings  were  threatened  against  Louis  Sams,  and  the  plaintiff,  •-  '"^ 
B.  B.  Sams,  brothers  of  Francis  Sams.  What  interest  these  brothers 
had  in  the  estate  of  Francis  Sams,  did  not  appear,  except  that  C.  H. 
Hopkins,  in  his  testimony,  spoke  of  the  plaintiff's  having  received  negroes, 
which  he  says  were  smuggled  from  Georgia,  by  Francis  Sams.  The 
plaintiff  applied  to  Col.  De  Treville  for  counsel,  and  having  been  advised 
to  pay  nothing,  resolved,  notwithstanding  to  compromise,  rather  than 
permit  any  interference,  by  C.  H.  Hopkins,  with  the  estate  of  Francis 
Sams. 


460  CHARLESTON,  FEBRUARY,  1842.      VOL.  II.  [*1T2 

Terms  of  compromise  were  accordingly  adjusted  between  the  plaiutifif 
and  the  defendant,  and  the  following  agreement  signed  by  them. 

^^ Beaufort,  February  9,  1836. 
"  ExEcnxoES  OF  Hopkins 
rs. 
Fkaxcis  Sams. 

"It  is  ajrreed  between  the  parties,  whose  names  are  hereunto  subscribed,  that 
on  condition  of  $700  being  deducted  from  the  whole  debt  in  this  case,  and  one-half 
the  residiie  then  relinquished,  Dr.  B.  B.  Sams  shall  pay  the  remaining  half,  and 

Albert  M.  Smith,  attorney  of Hopkins,  shall  then  give  a  general  and  entire 

discharge  of  all  demands,  in  the  said  case,  or,  as  the  said  B.  B.  Sams  shall  elect, 
an  assignment  of  debt  to  him. 

"  ALBERT  M.  SMITH, 

Attornei/  of  Ex'' or  Hopkins. 
"BERNERS  B.  SAMS." 
Before  the  payment  of  any  money,  on  10th  February,  1836,  (as  Col.  De  Treville 
fixed  the  date,  by  reference  to  papers, )  the  plaintiff  and  defendant  came  to  the 
office  of  Col.  De  Treville,  counsel  for  plaintiff;  C.  H.  Hopkins  not  being  present. 
Tlie  defendant  then  had  in  his  hand  the  exemplification  of  judgment,  with  the  fol- 
lowing assignment  annexed  to  it,  viz.: 

"ExECCTOKS  OF  Francis  Hopkixs  ^ 

vs.  >    Debt  on  bond. 

Fkancis  Sams.  y 

^,  H.q-1  "In  consideration  of  the  sum  of  eight  hundred  and  fifteen  *dollars,  paid 
'  -'  me  in  hand,  the  receipt  whereof  I  hereby  acknowledge,  I  assign  all  right, 
title  and  interest,  which  the  plaintiffs  in  the  above  suit  have,  in  the  judgment 
olitained  by  them,  against  the  said  Francis  Sams,  (an  exemplified  copy  of  which 
judgment  is  hereunto  annexed,)  to  Dr.  Berners  B.  Sams,  of  Beaufort,  South 
Carolina. 

"ALBERT  MOORE  SMITH, 

Plaintiff"' s  Attorney. 
"  Witness.  Bexj.  R.  BYTnEwoon. 
''Beaufort,  South  Carolina,  February  10,  A.  D.  1836." 

Col.  Pe  Treville  being  informed  of  the  proposition  to  assign  the  judg- 
ment, but  not  knowing  of  any  written  agreement  between  the  parties, 
(which  he  never  saw  or  heard  of,  before  the  trial,)  objected  that  the 
defendant  was  not  attorney  on  record,  that  even  an  attorney  on  record 
could  not  assign  a  judgment,  and  that  Charles  H.  Hopkins  was  only  one 
of  several  persons  interested  in  the  judgment ;  and  in  the  conversation 
that  ensued.  Col.  De  Treville  asked  of  defendant,  "  Suppose  Dr.  Sams 
should  pay,  will  you  be  responsible,  if  he  should  be  called  on  again  ?" 
Defendant  answered,  "No,  I  won't  do  that;  but,  I  loill  promise  not  to 
pai/  the  money  over,  until  I  procwe  a  proper  asav/nment  of  the  judg- 
vienl,  or  an  assignment  from  the  proper  p)arties.''^  It  was  then  distinctly 
understitod,  that  the  money  should  be  paid,  and  that  an  assignment 
should  be  procured  from  those  who  had  authority  to  assign.  Either 
from  whiit  was  said,  or  as  a  legal  inference,  the  witness.  Col.  De  Treville, 
colh'cK'd,  that  the  assignment  should  be  i)rocured  from  tliose  who  had 
authority  to  assign,  within  a  reasonable  time,  Col.  De  Treville,  and  as  he 
believes,  (he  plaintiif,  understood  in  this  conversation,  that  Uie  defendant 
was  acting  for  ().  II.  Ilupkins,  and  that  C.  II.  Hopkins,  was  one  of  the 
heirs  of  Fnincis  Hopkins  and  in  some  way  represented  the  executors  of 
his  father;  altli(tuirh  no  authority  was  shown,  or  distinctly  mentioned. 
But   the   pl'iinliir  treated   with  the  defendant,  and  not  with  Charles  H. 


*173]  SAMS   vs.   RHETT.  461 

Hopkins  The  parties  left  the  ofBce :  shortly  afterwards,  plaintiff  re- 
turned, with  a  receipt  for  the  money,  and  the  exemplilication,  with  the 
assignment  above  coi)ied,  annexed  to  it ;  and  then,  the  plaintiff  requested 
Col.  De  Treville  to  remember  what  *had  taken  place  ;  and  in  con-  r^^ir^ 
sequence,  the  Colonel  fixed  it  in  his  memory,  and  is  very  precise,  L 
especially  as  to  the  words  of  defendant's  promise.  On  the  25th  February, 
1836,  the  defendant  settled  with  C.  H.  Hopkins,  and  paid  to  him  what 
C.  H.  Hopkins,  (who  lives  in  M'Inlosh  county,  fifty  miles  from  Savannah,) 
examined  by  commission,  without  mentioning  the  sum,  says  was  "  in  full." 
A  receipt  given  by  C.  H.  Hopkins  to  defendant,  was  produced  by  the 
defendant,  which  showed  a  payment  25th  February,  1836,  on  the  judg- 
ment executors,  Hopkins  vs.  Francis  Sa7ns,  by  defendant,  to  C.  H. 
Hopkins,  of  $407.50,  "in  full."  No  notice  of  any  payment  seems  to 
have  been  given  to  plaintiff;  and  C.  H.  Hopkins  says,  the  settlement 
between  plaintiff  and  defendant  took  place  25th  February,  1836,  at  the 
voluntary  offer  of  plaintiff,  and  that  the  defendant  was  authorized  to 
accede  to  the  terms  proposed  by  ])laintiff. 

It  did  not  appear  that  any  thing  further  occurred  in  the  matter,  until 
the  summer  of  1840.  Some  conversation,  not  proved,  then  took  place 
between  the  parties ;  and  in  a  conversation  with  Edmund  Rhett,  Esq., 
speaking  of  the  assignment,  and  money  paid,  the  plaintiff  said,  "  mine  is 
not  a  legal  claim — I  rely  on  his  honor."  On  20th  July,  1840,  the 
plaintiff  s'ent  by  Mr.  Ellis,  to  the  defendant,  the  following  letter,  viz.  : 

"  To  A.  Rhett,  Esq. 

"Deak  Sir: — You  will  oblige  me  by  your  fiual  answer,  (for  wliicli  I  before 
applied  unsuccessfully,)  to  the  following  questions  :  Have  you  procured  a  regular 
assignment  to  me,  from  the  executors  of  Francis  Hopkins,  or  any  other  person 
duly  authorized  to  make  such  assignment,  of  the  judgment  in  the  case  entitled, 
the  executors  of  Francis  Hopkins  vs.  Francis  Sams?  If  you  hare,  be  good  enough 
to  deliver  it  to  the  gentleman  who  hands  you  this  ;  if  you  have  not  obtained  the 
assitjnment  of  the  said  judgment,  or  cannot  obtain  it,  have  you  paid  over  the  money, 
which  I  deposited  with  you  on  the  10th  February,  1836,  to  wit,  eight  hundred  and 
fifteen  dollars,  to  any,  and  what  person,  interested  in  the  said  judgment  ?  If  you 
have  not.  you  will  oblige  me  by  returning  it  to  me,  as  early  as  you  can  conveniently 
do  so.  Your  answer  to  the  above,  you  can  *either  commit  to  writing,  or  if  rjfi-r 
you  prefer,  communicate  it  verbally  to  the  gentleman  who  hands  you  this.    '- 

"Your  humble  servant, 
i,  "BERNERS  B.  SAMS. 

''Beaufort,  July  20,  1840." 

The  defendant  said  to  Ellis,  that  he  had  procured  no  assignment, 
besides  that  procured  from  Mr.  Hopkins ;  and  immediately  afterwards, 
by  some  other  hand,  transmitted  to  the  plaintiff  the  following  answer, 
viz.: 

"Beaufort,  July  20,  1840. 

"Dear  Sir: — Your  note,  through  Mr.  Ellis,  I  have  received,  and  I  returned  a 
verbal  answer ;  but  it  appearing,  on  a  second  perusal,  somewhat  more  formal 
than  such  communications  usually  are,  I  think  it  best,  for  both  of  us,  to  put  my 
answer  into  this  written  form. 

"As  I  have  told  you  before,  I  do  not  remember  the  transaction  referred  to  as 
you  do  ;  but  am  sincerely  disposed  to  use  any  influence  I  have  with  Mr  Hopkins, 
to  procure  such  another  assignment  of  the  judgment,  as  will  remove  your  fears, 
wholly  groundless  and  unnecessary,  as  I  am  convinced  they  are.  You  are  really 
in  no  nore  danger  of  being  compelled  to  pay  the  money  again,  than  to  discharge 


462  CHARLESTON,  FEBRUARY,  1842.      VOL.  II.  [*175 

the  national  debt  of  Great  Britain.  No  law,  with  which  I  am  acquainted,  requires 
it  of  Tou.  At  the  same  time,  I  repeat  what  I  have  said  from  the  first,  that  I 
acknowlcdo;e  no  legal  claim  on  me,  or  claim  of  honor,  to  take  any  step  in  the  mat- 
ter. I  will  wi-ite  to  Mr.  Hopkins,  as  soon  as  I  get  home.  Politics,  with  one  thing 
and  another,  have  put  it  out  of  my  mind  till  this  time  ;  but  I  have  every  disposi- 
tion to  resi>ect  your  apprehensions,  by  doing  all  in  my  power  to  relieve  them. 
' '  I  remain,  very  respectfully,  your  obedient  servant, 

"ALBERT  RHETT. 
•'  P.  S. — Tliis  is  the  only  answer  Mr.  Ellis  is  authorized  to  deliver  you." 

The  plaiutifF  replied  as  follows  : 

^' To  A.  Rhett,  Esq. 

^-, ,.(>-,  "Deak  Sir: — So  much  of  your  verbal  answer,  as  satisfies  *my  first 
J  inquiry,  viz.:  ^' That  you  had  not  procured  any  other  assignment  of  the  judg- 
ment, in  the  ca<:e  entitled,  the  executors  of  Francis  Hopkins  vs.  Francis  Sams,  than  the 
one  whicli  had  already  been  given  liy  Mr.  Hopkins,"  had  been  delivered  b}'  Mr. 
Ellis,  before  I  received  your  note.  I  regard  it  as  a  sufiicient  answer  to  the  first 
question.  In  yoiu*  note,  I  find  no  answer  to  my  second  question,  whicli  permit 
me  to  repeat.  "  Have  you  paid  over  the  money,  which  I  deposited  with  you  on 
the  lOtli  day  of  February,  1836,  to  wit,  eight  hundred  and  fifteen  dollars,  to  any, 
and  what  person,  interested  in  the  said  judgment?"  Be  good  enough  to  answer 
this  question,  yes,  or  no. 

"If  you  have  not  paid  over  the  money,  will  you  be  good  enough  to  acknowledge 
this  as  a  demand  upon  you  for  the  amount,  to  be  remitted  to  me  in  any  safe  way 
you  may  please  to  select.  iS'either  the  j)robability  of  my  being  called  on  again  by 
claimants  under  the  judgment,  nor  the  extent  and  nature  of  your  obligations  to  me, 
are,  in  my  opinion,  proper  subjects  for  discussion  here.  You  must  therefore  par- 
don me  for  declining  to  reply  to  so  much  of  your  letter,  as  contains  your  opinion 
upon  these  points.  Should  you  withhold,  or  deny  me  the  information  sought,  I 
shall  regard  your  silence  as  evidence  that  you  have  j)aid  the  money  over  :  or  that, 
still  having  it,  although  unable  to  obtain  a  proper  and  legal  assignment  of  the  above 
mentioned  judgui(>nt,  you  refuse  to  return  it  to  nie. 

"Waiting  your  rejily,  I  remam,  your  obedient  servant, 

"BERNERS  B.  SAMS." 

The  defendant  rejoined  as  follows : 

«'  Grahamville,  July  29,  1840. 
''Dr.  B.  B.  Sams. 

"  Dkau  Sir: — I  have  no  objection  to  answer,  with  perfect  frankness,  any  and 
all  of  your  inquiries,  about  your  business,  with  the  executors  of  Hopkins. 

"But  your  nianner  of  addressing  me  is  not,  as  I  conceive,  suificiently  polite. 
You  ouglit  to  know  me  well  enough,  not  to  forget,  that  it  is  not  in  your  power,  or 
that  of  any  man,  to  draw  from  me  anything  at  all  in  act  or  expj-ession,  while  you 
*1771  '*"*'*''''  yoi'"  feelings  to  make  you  depart  *from  that  style  of  courtesy,  which 
it  belongs  as  much  to  your  own  character,  as  a  gentleman,  to  observe,  as 
mine. 

"  Vou  should  remember,,  too,  that  in  asking  for  information,  it  is  but  common 
fairness  to  state  tlic  purpose  for  which  you  want  it.  When  you  satisfy  me  that 
you  liavf  not  intended  ti)  be  rude,  and  as  to  the  object  you  have  in  view  by  your 
iiiti-rr<igatoiicH,  I  will  return  explicit  answers. 

"  In  th.-  mean  time,  I  remain  your  obedient  servant, 

"ALBERT  RHETT." 

This  suit  was  commenced  in  August,  1840.  Tlie  defence  was  rested 
on  three  grounds:  1.  Nudum  pad  wn.  2.  That  defendant  contracted 
us  agent,  and  incurred  no  i)ersonal  liability.   3.  The  statute  of  limitations. 

Tlie  .Judge  instrncted  the  jury,  that  there  was  consideration  for  the 
parol  promise,  made;  in  Colonel  i)e  Treville's  otfice  ;  that  Ity  it,  the  de- 
fendant hound  himself  indiviiliiiiliy,  :uid  not  those  whose  claims  he  was 


*1'77]  SAMS   vs.    RIIETT.  463 

urjriup:;  and  that  from  tlie  time  wlicn  tliis  promise  was'broken  by  pay- 
ment of  the  money,  the  statute  of  limitations  commenced  to  ran  as  to  the 
amount  paid  ;  that  if  half  only  of  the  $815  was  paid  over,  (which  seemed 
to  be  the  result  of  connecting  the  receii)t  with  C.  II.  Uopkin's  testimony,) 
then  the  recovery  of  half  was  barred,  and  as  to  the  other  half,  the  statute 
did  not  commence  to  run  until  the  demand,  after  reasonable  time  for  pro- 
curing the  assignment.  Tf,  in  the  opinion  of  the  jury,  all  was  paid  over, 
the  whole  recovery  was  barred. 

The  jury  returned  a  verdict  for  the  defendant.  And  from  their  verdict, 
the  plaintiif  appeals. 

GROUNDS   OF   APPEAL. 

1.  Because  his  ITonor  charged  the  jury,  that  as  to  one-half  the  amount 
claimed,  the  Statute  of  Limitations  couimenced  to  run  from  the  time  the 
defendant  paid  it  to  Charles  Hopkins,  on  the  25th  February,  183G  ;  and  that  if 
the  proof  had  been  sufficient,  (and  in  his  Honor's  opinion,  it  was  not,)  that  the 
whole,  instead  of  one-half,  had  been  paid  over  to  the  said  Charles  Hopkins,  then 
would  the  plaintiff  be  barred  as  to  the  whole. 

*2.  Because  the  deposit  of  tho  money  by  the  plaintiff,  with  the  defend-  r*i  ^-o 
ant,  was  made  upon  the  defendant's  undertaking  not  to  pay  it  over,  until  ■- 
he  had  procured  a  proper  assignment  of  the  judgment  to  the  plaintiff.  The 
payment  of  the  money,  therefore,  by  the  defendant,  to  a  person  neither 
authorized  to  assign  the  judgment,  nor  entitled  to  the  money,  was  no  breach  of 
contract,  and  of  course  the  Statute  of  Limitations  did  not  commence  to  run 
from  that  time. 

3.  Because  the  relation  of  the  defendant  to  the  plaintiff,  was  that  of  an  agent 
to  his  principal  ;  and  the  possession  of  an  agent  was  not  adverse  until  demand 
made ;  therefore  the  Statute  of  Limitations  did  not  begin  to  ruu  until  then. 

4.  I3ecause  when  the  relation  of  the  parties  is  of  a  fiduciary  cliaracter,  notice 
of  the  breach  must  be  proved  as  to  the  plaintiff,  before  the  Statute  of  Limita- 
tions will  be  a  bar. 

5.  Because  the  defendant  contracted  to  pay  over  the  money  to  the  plaintiff 
on  a  contingency,  namely  his  failure  to  procure  a  proper  assignment  ;  and  that, 
until  he  had  informed  the  plaintiff,  that  he  had  tailed  to  procure  such  an 
assignment,  or  it  had  come  to  his  knowledge  in  some  other  way,  no  action 
would  lie;  and  therefore  the  Statute  would  not  ruu  until  then. 

0.  Because  this  was  an  action  to  recover  back  the  cousideration  money  of  a 
void  assignment,  which  was  treated  as  a  subsisting  assignment  by  tlie  maker  of 
it,  the  defendant  within  four  years  before  bringing  the  action,  and  therefore  the 
Statute  will  not  run. 

7.  Because  to  make  it  a  defence  to  an  agent,  that  he  has  paid  over  the  money, 
it  is  necessary  that  the  money  should  have  been  paid  to  the  agent  expressly  for 
the  use  of  the  person  to  whom  he  has  so  paid  it  over. 

8.  Because  the  verdict  was  contrary  to  law,  evidence,  and  the  charge  of  his 
Honor,  the  presiding  Judge. 

TT'.  F.  Ihit^on,  for  the  motion.  1.  Argued,  that  taking  the  view  of  tlie  pre- 
siding Jutlge  to  be  correct,  tlie  jury  erred  in  tluiiking  the  whole  amount  ]iaidover; 
for,  taking  Mr.  Hopkins'  testimony,  in  connexion  with  the  fact  that  the  receipt 
produced  is  for  exactly  one-half  the  inference*  on  the  mind  of  a  lawyer  is,  that  p^^,  .-q 
the  defemlant  retaineti  one-half  for  his  fee.  So  it  was  not,  in  fact,  paid  over.   '■      ' 

2.  But,  between  principal  and  agent,  in  which  relation  the  parties  stood,  the 
statute  of  limitations  would  not  run  until  demand  made.  Co.  Lit.  280  ;  2  i3ail. 
51  ;  1  llill.  Ch.  G7 ;  1  Taunt.  572. 

3.  So,  notice  of  payment  over  was  necessary,  before  the  statute  would  run. 
Godb.  ICO;  3  B.  k  A.  288. 

4.  But,  as  payment  to  a  person  not  authorized  to  receive  the  money,  would  not 
be  a  defence  to  the  action,  neither  cau  it  be  called  strictly  a  breach  of  the  contract, 


464  CHARLESTON,  FEBRUARY,  1842.      YOL.  II.  [*179 

for  the  contract  is,  "I  wiU  not  pay  over  the  money  until,"  &c.  But  what  is  the 
leo^al  construction  I  Avill  not  pay  over  to  the  executors  of  Hopkins.  The  payment 
to  C.  H.  Hopkins,  then,  is  no  breach. 

5.  Again:  It  was  an  implied  promise  to  pay  over,  on  a  contingency,  namely, 
defendant's  failure  to  procure  an  assignment ;  the  statute  would  not,  therefore, 
mn,  until  the  contingency,  allowing  a  reasonable  time  to  procure  the  assignment. 
1  Wm.  Black.  354 :"  Godb.  437.  Especially  as  the  contingency  suspended  the 
cause  of  action.     2  Bail.  544. 

(5.  But  this  may  be  treated  as  an  action  to  recover  the  consideration  money 
paid  for  a  void  assignment,  treated  by  the  assignor  as  a  subsisting  assignment 
within  foiir  years,  in  such  case  the  statute  of  limitations  will  not  run.  3  Moore 
&  Scott.  219  :  9  Bing.  748.  The  general  rule  is,  the  statute  begins  to  run  from  the 
time  when  the  party  had  a  cause  of  action.  The  payment  to  Hopkins  was  fifteen 
days  after  the  promise.  Supposing  the  plaintiff  ignorant  of  the  payment  to  Hop- 
kins, could  he  have  sustained  an  action  commenced  on  the  26th  February  ?  If 
not,  the  statute  would  not  run  until  he  could  sustain  his  action.  There  is  no  pro- 
mise to  return  the  plaintiff  the  money;  therefore,  until  he  demanded  it,  he  had 
no  right  of  action. 

Wm.  E.  Mart'n,  contra,  rested  the  defence  on  the  following  grounds: 

1st.  If  any  thing  intended  for  a  contract  was  entered  into,  it  was  nudum  pac- 
tum. "  The  consideration  in  assignment  must  be  such  as  the  party  promising  has 
*l<;m  power,  by  law,  to  perform,  or  cause  to  be  performed."  1  Selwyu,  p.*  40. 
■'  Mr.  Rhett  engaged  to  procure  an  assignment,  but  could  not  compel  the  par- 
ties, who  were  plaintiffs  in  the  judgment,  to  execute  an  assignment.  The  case  of 
an  attorney  engaged  to  procure  satisfaction  of  judgment,  (where  it  is  said  assign- 
ment will  not  lie,  for  after  judgment  the  warrant  of  attorney  ceases,)  is  analogous 
to  the  present.  1  Coniyn.  Dig.  32U.  The  English  Courts  have  also  held  assign- 
ment will  not  lie  for  failing  to  procure  a  bankrupt's  certificate,  for  the  same  rea- 
son. Again;  "a  mere  courtesy  will  not  support  assignment;"  Buller,  N.  P. 
145.  "Agreement  to  do  anything  on  one  side,  without  compensation  on  the 
other,  is  void  in  law."  Comyn.  on  Con.  1,  9;  Bl.  Com.  445.  A  gratuity,  in- 
tended as  such  at  the  time,  cannot  afterwards  be  made  the  foundation  of  a  legal 
di-mand,  as  has  been  held  in  South  Carolina  also.  To  apply  this,  it  will  be  seen, 
that  if  Mr.  Khett  is  to  be  considered  Dr.  Sams'  agent,  no  compensation  appears  to 
liave  been  given  to  Mr.  Rhett ;  and  Dr.  Sams  stated  to  Mr.  Edmund  Rhett,  four 
years  after  the  transaction,  the  foundation  of  this  suit,  in  alluding  to  defendant, 
"Mine  is  not  a  legal  claim,  I  rely  on  his  honor."  If,  therefore,  the  council  for 
appellant  are  right,  in  considering  Mr.  Rhett  the  agent  for  Dr.  Sams,  it  is  nudum 
jiiiitum.      See  also,  the  note  in  I  Selwyu.   N.  P.  3tj. 

2d.  If  Mr.  Rhett  was  not  the  agent  of  Sams,  he  must  have  been  the  agent  of  Hop- 
kins, and  the  executors  of  Hopkins  ;  in  that  case,  having  declared  his  principal,  his 
agency  being  known,  and  being  treated  with  as  the  agent  of  C.  H.  Hopkins,  "one 
of  the  heirs  of  Francis  Hopkins,  who,  in  some  way,  represented  the  executors  of  his 
fallicr,"  the  principal  is  liable,  and  not  the  acjent.  Caneij  vs.  Webster,  1  Strange,  480  ; 
Ml, I  vs.  Hammond,  same,  505  ;  Borrou(/h  vs.  Skinner,  5  Burr.  2G,  39  ;  Sadler  vs.  Evaiis, 
4  Burr.  1985,  (considered  a  leading  case  ;)  Bullc  vs.  Harrison,  Cowper,  5G8  ;  2  Kent, 
492  ;_1  Liyeniiore  on  Agency,  245,  24G,  247,  249  ;  Paley  on  Agency,  289,  304, 
30t!,  308,  309  ;  Kxemtors  of  Ashe  vs.  Livingston,  2  Bay,  85  :  sustained  in  Waddcll 
vs.  Mord,rai.  Riley  Coll.  17.     (3  Hill.  22.     ,-1h.) 

M.  The  statute  of  limitations  is  pleaded  in  both  forms,  "  Non  assU.  and  actio 
nan;"  and  the  action  is  barred,  if  there  ever  existed  the  right  of  bringing  it. 
*181]  ^^''"'"  '"f'»''y  is  paid  l)y  mistake,  or  upon  a  consideration  which  has  *hap- 
peiied  to  fail,  tin-  statutt^  runs  from  the  time  tin*  money  is  paid.  1  Esp. 
N.  r.  157.  (Tlie  moiiry  in  this  case  was  paid  on  25th  February,  1836,  and  suit 
hepun  in  Aug>ist,  184(1.)  In  all  cases  of  injury  arising  from  carelessness,  or 
iK'glig.-iic',  thr  statute  runs  from  the  time;  of  "the  act  being  done,  from  svhich  the 
injury  arose,  and  not  from  tii(*  injury,  or  the  discovery  of  it.  Jh-ee  vs.  llorlbeck, 
Cowp.  (154  ;  //ou-ellvH.  Youuf/,  12  Com.  Law  Rep.  1(>7  ;  '/Jatteh/  vs.  Falkne.r,  5  Com. 
Law  R.'p.  2SH  ;  Short  f,-  MrCarth,/,  same,  403  ;  Troup  vs.  Executors  of  Smith,  20 
JoliiiM.  33  ;  MrJjowall  vs.  Executors  of  Goodicjjn,  2  Mil.  Const.  Rep.  445  ;  Motlei/  ^ 


181] 


SAMS   VS.   RIIETT.  465 


Muntgoviery,  2  Bailey,  544  ;  Executors  of  Tliomas  vs.  Execufors  of  Ervin,  Cheves, 
22.  Tho  appellant's  counsel  has  argued  that  Mr  Khett  stood  towards  Dr.  Sams 
in  a  fiduciary  relation,  and  that  the  statute  will  not  run  until  some  act  is  done  by 
Mr.  Rhett,  to  terminate  the  agency.  This  argument  would  well  ai)ply  in  the 
Court  of  Equity,  particularly  as  the  counsel  treats  the  parties  in  the  light  of 
trustees  and  cestui  que  trust,  when  he  contends  that  the  statute  runs  only  from  the 
time  of  the  discovery  of  the  payment  over.  In  the  case  of  7'roup  vs.  Smith,  20 
Johns.  33,  abov<;  referred  to,  it  was  held,  the  statute  would  run  from  payment 
over,  whether  discovered  or  not.  It  was  argued,  that  the  statute  would  only  run 
from  demand  made  in  1840  ;  but  this  cannot  apply,  because  the  demand  was  not 
necessary  to  constitute  a  cause  of  action,  which  is  the  case  when  the  statute  runs 
from  demand.  The  payment  over  was  a  breach,  and  gave  cause  of  action.  In 
the  case  of  Smith  j^"-  Bythewood,  Rice,  245,  the  Court  held,  that  when  a  note  was 
payable  on  demand,  the  statute  run  from  the  first  existence  of  the  note  ;  no  de- 
mand, beyond  the  service  of  the  writ,  was  necessary,  and  it  was  not  even  entitled 
to  days  of  grace,  though  having  no  date.  Again  ;  this  was  a  promise  indefinitely, 
no  time  being  fixed  for  its  fulfilment ;  the  party  promising  having  it  in  his  power 
to  defeat  the  intention  at  will,  (viz.  :  paying  over  the  money  for  a  difi'erent  pur- 
pose from  that  intended, )  and  under  the  authority  of  the  case  of  AJcDowall  vs. 
Ex^ors  of  Goodwyn,  2  Mill's  C.  K.  441,  the  statute  was  a  bar.  There  cannot  be  a 
doubt,  that  if  the  statute  was  not  a  complete!  bar  on  the  10th  February,  1840,  it 
must  liave  been  so  on  the  25th  *of  the  same  month  and  year,  (the  four  r^iQ.T 
years  from  payment  over  having  elapsed, )  and  the  suit  was  not  commenced  '■ 
until  August,  of  the  same  year. 

Curia  per 'Eya'ss.  The  written  contract,  dated  9th  February,  stipu- 
lates, that  on  the  payment  of  a  certain  portion  of  the  judgment,  the  de- 
fendant, as  attorney  of  Hopkins,  should  give  a  general  and  entire  dis- 
charge of  all  demands,  or  as  the  said  13.  B.  Sams  shall  elect,  an  assign- 
ment of  debt  to  him.  From  this  agreement  the  plaintiff  has  certainly  no 
cause  of  action  against  the  defendant,  for  not  procuring  an  assigment  of 
the  judgment.  If  any  such  right  of  action  exists,  it  arises  out  of  the 
verbal  stipulation  proved  by  Colonel  De  Treville,  to  have  been  made  on 
the  10th  February,  the  day  after  the  written  agreement  was  signed. 
That  stipulation,  as  proved,  was,  "  that  he  (the  defendant,)  would  not 
pay  the  money  over,  until  he  procured  a  proper  assignment  of  the  judg- 
ment, or  an  assignment  from  the  proper  parties."  We  think  with  the 
presiding  Judge,  that  this  was  a  personal  undertaking,  and  that  it  was 
founded  on  a  sufficient  consideration,  to  wit,  the  i)ayment  of  money  by 
Sams.  A  very  slight  matter,  either  of  benefit  on  one  side,  or  lo.ss  o^n  the 
other,  is  a  sufficient  consideration  to  support  a  promise- ;  so  that  the  only 
question  about  wliich  there  is  any  difficulty,  is,  whether  tlie  i)laintifF's 
action,  arising  out  of  this  breach  of  contract,  is  barred  by  the  statute  of 
limitations.  There  is  no  doubt  of  the  correctness  of  the  principle  con- 
tended for  by  the  plaintiff's  counsel,  that  as  between  principal  and  agent, 
the  statute  of  limitations  does  not,  in  general,  run,  because  there  is  no 
right  of  action  until  demand.  The  difficulty  of  the  case  is,  to  determine 
the  precise  relative  position  of  the  parties.  I  do  not  perceive  there 
is  any  foundation  for  the  main  argument  of  the  plaintiff's  counsel, 
that,  by  the  contract,  Rhett  was  Sams'  agent  to  buy  an  assignment 
from  the  executors  of  Hopkins.  The  money  was  not  paid  on  any  such 
contract  as  this.  The  money  was  paid  on  the  contract  ot  ille  9th 
February,  to  Rhett,  as  the  agent  of  Hopkins,  u])on  his  stipidation  not 
to  pay  it  over  until  he  procured  an  assignment  of  the  judgment.  The 
plaiQtifiTs  complaint  is  not  that  the  defendant  still  keeps  the  monev  and 
Vol.  L— 31  ^  j>       . 


4:66  CHARLESTON,  FEBRUARY,  1842.      VOL.  IL  [*183 

:^:-,no-]  *therefore,  the  plaintiff  has  a  right  to  recover  it  back,  as  paid  on 
-I  a  consideration  that  he  has  not  performed,  but  that  he  has  violated 
his  promise,  and  paid  over  the  money,  without  procuring  the  assignment, 
according  to  his  promise.  The  general  principle  is,  that  the  statute  of 
limitations  begins  to  run  whenever  a  cause  of  action  accrued  to  the  plain- 
tiff, or,  in  other  words,  whenever  the  plaintiff  can  sue  the  defendant  for  a 
breach  of  his  contract.  Now  there  can  be  no  doubt  that  when  Rhett 
paid  the  money,  in  violation  of  his  agreement,  he  was  liable  to  action  on 
his  contract.  It  was  broken,  and  the  statute  of  limitations  commenced 
to  run  from  the  day  the  plaintiff  could  have  brought  an  action  against 
him.  But,  it  is  supposed,  no  cause  of  action  accrued  to  Sams,  until  he 
was  informed  of  the  breach  of  Rhett.  I  think  it  wholly  immaterial, 
whether  he  knew  it  or  not.  If  he  did  not,  of  which  there  is  no  evidence, 
except  that  it  may  be  inferred  from  his  letters,  it  was  his  misfortune,  and 
he  is  not  the  first  man  who  has  lost  his  right  of  action  by  his  own  inat- 
tention to  his  business  In  this  particular,  the  case  is  like  Executors  of 
Thomas  vs.  Ervin.(a)  If  the  defendant  had  fraudulently  got  possession  of 
the  plaintiff's  money,  or  had  deceived  him  by  misrepresentations  as  to  its 
misapplication,  that  might,  perhaps,  have  altered  the  case.  The  defend- 
ant is  only  bound  by  his  promise.  Thei'e  is  no  pretence  of  any  right  to 
sue  him  on  any  other  ground  than  a  violation  of  his  promise.  More  than 
four  years  elapsed  after  a  cause  of  action  accrued  to  the  plaintiff,  and  we 
are  of  opinion,  the  plaintiff's  action  is  legally  barred.  The  motion  is  dis- 
missed. 

O'Neall  and  Wardlaw,  JJ.,  concurred. 

Butler,  J.  I  am  inclined  to  the  opinion,  that  the  defendant  should 
be  regarded  as  a  bailee,  and  did  not  hold  the  money  adversely  until  de- 
mand, and,  therefore,  could  not  avail  himself  of  the  statute  of  limitations. 

RTciiArnxsoN,  J.  I  dissent  from  the  decision  of  the  Court  in  this  case. 
I  think  tiie  defendant  was  bound  to  keep  the  money  until  he  had  obtained 
♦  ISil  ^^^  ^^'  ^^'^^^  ^  legal  assignment*  of  the  judgment  from  the  exec- 
-'  utors  of  Francis  Hopkins,  or  a  legal  acquittance  from  them.  That, 
therefore,  the  i)ayment  of  the  money  over  to  Charles  II.  Hopkins,  was 
merely  voluntary  and  gratuitous  ;  and  of  course,  until  Dr.  ISams  had 
notice  of  such  a  transfer  of  the  money  to  Charles  H.  Hopkins,  or  of  a 
refusal  to  return  it,  or  tlie  defendant  had  procured  the  legal  assignment 
of  the  judgment,  he,  the  defendant,  stood  in  the  character  of  the  agent, 
either  to  pay  over  the  money  to  the  executors,  or  to  procure  the  proper 
assignuu;nt ;  and,  therefore,  the  statute  of  limitations  could  not  attach 
until  after  the  corresijondeuce  of  1840. 

(«)  CliovoH,  22.  See  Clark  vs.  Reeder,  1  Sp.  298.  Roxhorowjh  vs.  Albrujht,  4 
Rich.  40.     All. 


184] 


SMITH    VS.    SINGLETON.  467 


Jacob  Smith  t-*-.  C.  J.  T.  Singleton. 


In  an  action  of  trespass  and  assault  and  battery,  where  the  battery  has  been  com- 
mitted by  several,  and  a  recovery  had  afjainst  one,  such  recovery  may  be  pleaded 
in  bar  to  an  action  for  the  same  battery  brought  against  another. 

Before  O'Neall,  J.,  at  Beaufort,  Spring  Term,  1841. 

The  following  is  his  Honor's  report  of  the  case  : 

This  was  an  action  for  a  trespass  on  the  person  of  the  plaintiff",  com- 
mitted by  the  defendant,  Lucius  C.  Kobert,  and  others.  The  plaintiff 
brought  several  actions,  and  at  a  previous  term,  recovered  a  verdict  of 
damages  against  Lucius  C.  Robert,  for  the  same  assault  and  battery  of 
which  the  plaiutilT  comiilained  against  the  defendant,  and  on  that  verdict 
judgment  was  entered  up,  and  was  fully  paid  and  satisfied.  The  defend- 
ant tendered  to  the  plaintiff  tlie  costs  of  this  action,  and  pleaded  the 
recovery  had  by  this  plaintiff  against  Lucius  C  Roberts,  for  the  assault 
and  battery  of  which  he  complained  against  him,  and  *averred  (-:(cior 
that  that  recovery  had  been  satisfied,  and  that  he  had  tendered  to  •- 
the  plaintiff  the  costs  of  this  case.     The  plaintiff  demurred  generally. 

I  was  anxious  (if  I  had  been  at  liberty  to  do  so,)  to  sustain  the  demur- 
rer. For  the  battery  was,  from  what  I  learned  in  other  trials,  during 
the  term,  an  erroneous  one,  committed  by  the  defendant ;  Robert  was 
only  an  aider  and  abettor  in  its  perpetration.  The  recovery  against  him 
was,  I  think,  for  twenty  dollars. 

But,  on  authority,  there  can  be  no  clearer  proposition  than  that  the 
plea  was  a  bar  to  the  plaintiff's  action.  In  Buller's  N.  P.  2,  (referring 
to  Yelv.  68,)  it  is  said,  "so  if  a  battery  be  committed  by  several,  and  a 
recovery  had  against  one,  such  recovery  may  be  pleaded  in  bar  to  an 
action  for  the  same  battery  brought  against  another."  In  Haivkins  vs. 
Halton,  1.  N.  &  M'C.  318,  the  point  was  presented  for  the  consideration 
of  the  Constitutional  Court.  The  opinion  of  the  Court  was  delivered  by 
Mr.  Justice  (now  Chancellor)  Johnson.  He  gave  the  following  as  the 
law  on  the  subject  :  "  It  is  unreasonable,  that  a  party  should  have  more 
than  one  satisfaction  for  the  same  injury  ;  and  although  there  may  be 
several  wrong-doers,  and  the  party  injured  may  maintain  actions  against 
them  severally,  yet  each  is  liable  for  the  whole  entire  damages  sustained  ; 
and  the  law,  abhorring  a  multiplicity  of  actions,  will  presume  that  the 
jury  in  any  one  of  the  actions,  would  give  him  damages  to  the  extent  of 
the  injury,  and  forbids  that  he  should  prosecute  a  further  remedy  after 
there  has  been  a  satisfaction.  But,  until  there  is  a  satisfaction  of  the 
damages  assessed,  a  recovery  could  not  0))erate  as  a  bar  to  an  action 
against  another  of  the  joint  trespassers  ;  because  it  is  possible,  from  the 
insolvency  of  the  first  defendant  and  various  other  causes,  the  plaintiff 
might  never  be  able  to  obtain  his  redress.  It  was,  therefore,  clearly  in- 
cumbent on  the  defendant  to  have  averred  a  satisfaction  in  his  plea  of 
former  recovery."  In  another  part  of  the  oi)inion,  the  Judge  states  the 
rule  thus,  "  if  there  has  been  a  recovery  against  one  of  several  joint 
trespassers,  the  plaintiff  may  proceed  against  the  others,  until  there  is  a 
satisfaction  of  the  damages  recovered  against  some  one  of  the  defendants  ; 
and  if  he  elect,  as  he  *may  do,  to  the  satisfaction  of  any  one  of  the  r^^io/. 
judgments,  the   Court  will,  on  the  payment  of  the  costs  in   the  ^ 


468  CHARLESTON,  FEBRUARY,  1842.      VOL.  IL  [*186 

other  cases,  order  satisfaction  to  be  entered  on  all  the  judgments." 
This  statement  of  the  rule  gave  rise  to  the  notion,  that  before  the  plea  of 
tlie  former  recovery,  averring  satisfaction,  could  be  sustained,  it  must 
also  aver,  that  the  case  pleaded  to,  had  been  tendered  ;  and  in  the  sub- 
sequent stage  of  the  case  of  Haiokins  vs.  Hailon,  that  very  objection  was 
presented  and  sustained  at  Nisi  Prius,  and  the  decision  was  unques- 
tioned by  appeal.  The  rule,  as  now  recognized  in  practice  in  this  State, 
is  stated  in  Fai-k  vs.  Hopkins,  2  Bail.  411,  in  the  following  words: 
"  For  a  trespass,  and  other  injury,  ex  delicta,  which  may  legally  arise 
from  the  joint  act  of  two  or  more,  the  party  injured  has  the  right  to  sue 
all  the  wrong-doers,  jointly  or  severally  as  he  may  think  proper.  If  he 
brings  separate  actions  against  each  of  them,  a  recovery  against,  and 
satisfaction  of  the  damages  by  one,  will,  upon  the  payment  of  the  costs  in 
the  other  cases,  bar  a  further  recovery." 

The  plea  conforms  to  all  these  requisites.  The  demurrer  was  overruled 
and  there  was  judgment  in  bar  for  the  defendant.  The  plaintiff  appeals, 
on  the  ground  that  "  there  was  error  in  ruling  that  the  recovery  in  the 
suit  against  Lucius  C.  Robert  was  a  bar  to  the  suit  against  this  defend- 
ant." 

Martin,  for  the  motion,  insisted  that  notwithstanding  the  current  of  English 
decisions,  they  could  not  apply  in  this  State,  for  this  reason.  In  England,  the 
damages  against  joint  trespassers  cannot  he  apportioned  between  the  trespassers, 
according  to  the  deijree  of  participation  of  each — in  this  State  they  may  be.  (See 
first  case  in  Bay,  White  vs.  McNeeJy  et  al.)  The  reason  for  the  rule  not  existing 
here — the  rule  of  law  should  not,  therefore,  apply. 

Hittson,  contra.  In  addition  to  the  cases  referred  to  by  the  Court,  in  the  report 
of  the  case,  relied  on  Coc/ce  vs.  Jenncr,  Hobert,  66  ;  Cobhett  vs.  Barnes,  William 
Jones,  377  ;  Bird  vs.  Randall,  3  Burr.,  1353 ;  Livingston  vs.  Bishop,  et  ah,  1  John,  291. 

*187l  *Curia,  per  O'Neall,  J.  This  Court  for  the  reasons  given 
-'  below,  are  satisfied  with  the  decision ;  but  as  this  case  was 
attempted  to  be  distinguished  from  the  cases  referred  to  in  the  report, 
on  the  authority  of  White  vs.  3IcNeehj  and  others,  1  Bay,  11,  it  may  be 
well  enougli  to  show  that  no  such  distinction  can  be  allowed. 

It  is  true,  we  early  dejjarted  from  the  English  rule,  that  in  a  joint 
action  of  trespass,  the  jury  cannot  sever  in  their  damages.  The  case  of 
W/iile  vs.  McNeely,  in  1784,  ruled,  that  the  jury  in  such  a  case  might 
sever  and  aiii)orti()n  the  damages  according  to  the  degree  and  nature  of 
the  ofT('Mce  coraniiltod  by  each  defendant.  The  wisdom  of  such  departure 
is,  I  think,  very  questionable  ;  but  it  has  been  in  practice  ever  since  con- 
foniu'd  to ;  and  we  are  now  asked  to  give  it  a  further  extension,  by 
abolishing  another  well-settled  principle,  that  in  several  actions  for  a 
joint  trespass,  a  recoxery  against  one  defendant,  the  satisfaction  of  it,  and 
the  payment  of  the  costs  in  the  other  cases,  will  bar  any  recovery  against 
the  other  defendants. 

It  is  sup])osed  that  this  principle,  and  the  consequences  of  a  recovery 
in  such  a  case  as  While  vs.  McNeehj,  cannot  stand  together.  For  it  is 
asked  if  a  recovery  against  one  of  several  joint  trespassers,  and  satisfac- 
ti(.n,  be  a  bar  to  a  recovery  against  the  others,  why  would  not  the 
payment  of  the  danuiges  found  against  any  one  of  the  defendants  in  a 
joint  action,  bar  the  coih'ction  of  the  danuiges  found  against  the  others  ? 
The  answer  is  obvious— in  several  actions,  the  law  supposes  the  jury  to 


*187]  PARKERSON   VS.    SIMONS   &   EPPING.  469 

find  against  any  one,  the  entire  damages  sustained  by  the  plaintiff,  and 
therefore,  satisfaction  in  one  is  satisfaction  in  all.  But  in  a  joint  action, 
when  the  damages  are  apportioned,  the  aggregate  of  all  the  damages 
found  is  the  damage  of  the  plaintiff ;  and  hence  satisfaction  by  one,  of  his 
part,  is  not  satisfaction  for  all,  and  of  the  whole. 
The  motion  is  dismissed. 

Richardson,  Butler,  Wardlaw,  JJ.,  concurred. 

See  dissenting  opinion  in  Union  Bank  vs.  Hodges  Sf  Smith,  11  Rich.     An. 


*JoHN  Parkerson  vs.  Simons  &  Epping.  [*188 

Defendants,  (chemists)  were  in  the  practice  of  filling  a  certain  soda  fountain  for 
one  Hopkinson,  who  rented  this  and  another  fountain  from  the  plaintiff.  Hop- 
kinson  absconded,  leaving  the  soda  fountain  in  the  possession  of  defendants, 
who  had  first  filled  it.  Plaintifi"  brought  this  action  of  trover  for  the  conversion 
by  defendants.  Held,  That  there  was  no  such  tortious  conversion,  as  would 
enable  plaintiflF  to  sustain  trover,  and  a  nonsuit  was  ordered. 

Tried  in  the  City  Court,  Charleston,  January  Terra,  1842,  before 
the  Recorder. 

This  was  a  process  in  trover  for  a  soda  fountain  ;  it  appeared  in 
evidence  that  plaintiff  rented  to  one  Hopkins,  two  soda  fountains  ;  that 
Hopkins  was  in  the  habit  of  getting  defendants  to  fill  these  fountains  for 
hiin.  The  early  part  of  last  summer,  Hopkins  absconded,  leaving  one 
of  these  fountains  in  the  possession  of  defendants,  who  had  filled  it. 
Parkerson  demanded  the  fountain ;  his  right  of  property  was  not 
disputed,  but  the  defendants  refused  to  deliver  it  up,  claiming  to  have  a 
lien  for  the  filling. 

It  was  in  evidence  that  after  the  refusal  and  before  suit  brought, 
defendants  said  to  Parkerson  that  he  could  have  the  fountain  if  he  chose 
to  call  for  it. 

Plaintiff's  counsel,  however,  stated  in  evidence  that  just  before  snit 
brought,  he  called  on  defendants,  who  said  that  the  business  must  be 
legally  settled. 

Another  witness  stated  that  the  contents  of  the  fountain  could  have 
been  drawn  oft"  by  defendants  and  retailed  by  them  without  any  loss. 

The  recorder  thought  the  conversion  proved,  that  the  defendants  had 
no  lien  for  the  filling,  and  decreed  for  the  plaintiff  the  value  of  the 
fountain,  say  thirty-five  dollars. 

The  defendants  appealed,  upon  the  subjoined  grounds : 

1st.  Because  the  action  being  in  trover,  the  plaintiff  failed  to  prove  a  con- 
version of  the  poods  in  question,  and  ought  to  have  been  nonsuited. 

2d.  That  the  defendants  having  sliown  to  the  Court  that  they  had  a  good 
and  substantial  lien  upon  the  property  in  question,  they  were  entitled  to  a 
decree. 

3d.  That  the  said  decree  is,  in  other  respects,  contrary  to  law. 

*J/r.  Walker,  for  the  motion.  1st.  Where  there  is  a  lien  and  notice  given,  ^^,  ^^ 
and  no  tender  made,  there  can  be  no  conversion.     Mo.  on  Lieu.,  28:  125  At.   '-     "" 


470  CHARLESTON,  FEBRUARY,  1842.      VOL.  H.  [*189 

2d.  The  fountains  were  hired,  and  there  was  no  proof  of  the  determination  of 
the  contract.     Bac.  Ah.  Tit.  Trov.,  602. 

Mr.  Elliott,  contra.  The  lien  can  only  exist  when  the  labor  and  material  of  the 
mechanic  is  mingled  with  the  article. 

Curia,  per  Butler,  J.  By  a  contract  of  hire  the  plaintiff  had  let  one 
Hopkins  have  the  soda  fountain,  which  is  the  subject  of  this  suit.  Hop- 
kins, while  a  retailer  of  soda  water,  and  while  he  was  the  special  owner  of 
the  fountain,  placed  it  with  the  defendants,  who  were  chemists,  to  have  it 
filled.  The  defendants  re<?arding  the  actual  depositor  as  the  true  owner, 
filled  the  fountain  with  soda  water,  and  contend  that  they  have  a  right  to 
retain  it  until  they  are  paid  for  their  trouble  and  expense  in  filling  it. 
Whether  they  can  do  so  or  not  depends  on  the  nature  of  their  employ- 
ment, and  their  relation  to  the  present  plaintiff.  They  are  chemists  and 
are  engaged  in  an  employment  requiring  skill,  labor  and  expense  to  carry 
it  on.  Soda  water  is  prepared  by  disengaging  carbonic  acid  gas  from 
marble  or  lime  stone  by  sulphuric  acid  ;  the  gas  thus  generated  is  pumped 
with  great  care  into  a  fountain  containing  water  and  soda.  The  water 
thus  prepared  is  only  valuable  while  combined  with  this  gas,  which  will 
escape  by  the  slightest  exposure,  and  it  must  always  be  a  difficult  matter 
to  draw  ofi"  the  water  into  another  vessel  without  its  losing  its  valuable 
quality;  and  the  trouble  of  doing  this  would  be  greater  than  filling  the 
fountain,  and  also  with  the  risk  of  the  water  becoming  valueless  in  the 
process.  I  understand  that  the  filling  of  such  a  fountain  as  this  would 
be  worth  from  $5  to  $8.  Under  these  circumstances,  had  the  defendants 
a  right  of  lien  on  the  fountain  which  they  had  filled  ?  *'  Lien  is  the  right 
of  detaining  the  goods  of  another  until  some  demand  be  satisfied."  la 
what  jjarticular  cases  and  against  whom  this  right  will  attach,  cannot  be 
indicated  with  entire  certainty  and  precision.  It  either  arises  by  opera- 
*1  OOl  ^'""  *^^  '"^^'  ^^'  ^^  created  I)y  express  contract,*  and  may  be  general, 
-"  or  particular ;  particlar  liens  exist  where  persons  have  a  right  to 
retain  possession,  in  respect  of  labor  or  money  expended  on  the  identical 
chattel  which  constitutes  the  subject  of  controversy.  These  are  always 
favored  by  the  Courts,  (1  Atk.  228.)  The  case  referred  to  was  ex  jyarte 
Deeze.  The  petitioner  was  a  packer  and  had  packed  goods  for  Mr. 
Norton  Niclioll,  to  whom  he  had  also  lent  large  sums  of  money.  Nicholl 
had  demands  against  Deeze,  so  that  there  were  mutual  accounts  between 
them  when  Xicholl  became  bankrupt,  and  Deeze  contended  that  he  had 
a  right  to  retain  the  goods  packed  until  he  was  paid  his  demand  by  the 
as.-;igiiees  of  the  bankrupt.  In  giving  his  judgment  the  said  Chancellor 
remarks  :  "To  be  sure,  packers  may  retain  goods  till  they  are  paid  the 
])rice  and  lal)or  of  packing  ;  and  so  other  tradesmen  may  retain  in  like 
manner ;  therefore,  these  goods  were  in  the  petitioner's  hands  in  the 
nature  of  a  jiledge  for  some  part  of  the  debt,  that  is,  the  price  of  the 
packing;  and  what  right  has  a  Court  of  Equity  to  say,  that  if  he  has 
aiii.llicr  (lcl)t  due  to  him  from  the  same  person,  that  the  goods  shall  be 
taken  from  him  wiihout  having  the  whole  paid  ?"  The  goods  themselves, 
in  sepiiraic  parcels,  had  no  value  imparted  to  them  by  the  packer,  they 
were  not  in  any  wise  changed  in  their  original  character,  as  they  would 
liave  been,  if  they  had  l)eeu  dyed  or  printed,  &c.  They  were  merely  put 
togellxr  for  transportation  from  one  place  to  another.  The  packer's 
labor  about  their  packing  gave  him  his  lien.     So  of  this  soda  fountain. 


♦190]  BARRETT   atls.    CHARLESTON    BANK.  471 

Nothinj?  was  done  to  the  copper  vessel  itself,  but  its  contents  jrave  it 
an  additional  value  by  the  labor  and  sltill  bestowed  on  it  by  the  defend- 
ants. They  had  lost  their  time  and  parted  with  their  materials,  and  that 
upon  the  conlidencc  that  Hopkins  would  pay  them  before  the  fountain 
was  removed.  The  plaintiifs  take  the  ground  that  they  are  not  to  be 
afi'ected  by  the  contract  between  Hopkins  and  the  defendants.  They 
certainly  fjave  Hopkins  the  right  to  use  the  fountain  as  his  own  while  he 
had  it  in  his  possession.  By  their  own  act,  the  defendants  have  done 
work  for  Hopkins  on  a  pledge  which  he  had  a  right  to  make.  They 
cannot  exonerate  him  now  from  his  liability  under  his  contracts,  or  de- 
))rive  defendants  of  any  right  or  remedy  incident  to  *or  resulting  r -:^|gj 
from  thera  which  were  fairly  acquired.  And  whatever  rights  L 
the  defendants  have,  it  was  not  pretended  they  did  not  acquire  fairly. 
The  defendants'  lien  must  be  respected  rather  at  the  time  it  was  acijuired, 
than  suffered  to  be  defeated  by  subsequent  events,  over  which  they  had 
no  control.  We  are  of  opinion  that  the  defendants  were  not  guilty  of  a 
conversion  in  retaining  possession  of  the  fountain  in  controversy,  under 
the  circumstances  existing  at  the  time  the  demand  was  made,  and  think 
that  a  nonsuit  should  have  been  granted,  which  is  accordingly  ordered. 

Richardson,  O'Xeall,  Evans  and  Wardlaw,  JJ.,  concurred. 

H.  Pinckney  Walker,  for  the  motion.      T.  0.  Elliott,  contra. 

Lien.     See  11  Rich.,  279.     An. 


Jacob  Barrett  ads.  The  Charleston  Bank. 

Where  the  endorser  of  a  promisory  note  has  secured  himself  against  his  liahility, 
by  an  assicrnmont  or  lien  upon  the  whole,  or  a  sufficiency  of  the  maker's 
property  as  an  indemnity,  notice  is  not  required  to  be  given  to  him. 

Tried  in  City  Court  of  Charleston,  July  Term,  1841,  Before  his  Honor 

the  Recorder. 

The  following  are  the  facts  of  this  case  : 

This  was  an  action  of  assumpsit  against  defendant  Barrett,  as  endorser 
of  a  pronussory  note  of  George  W.  Logan,  for  $900,  dated  19th  Novem- 
ber, 11S40,  and  payable  sixty  days  after  date.  The  defence,  no  legal 
notice  of  dishonor. 

Wm.  E.  Hai/ne,  sworn  :  Notary  of  the  Bank;  demanded  *payment  of  this   [-^-iq.i 
note  at  Logan's  office,  his  place  of  business,  after  fonr  o'clocii  of  the  day  ^ 
on  which  it  was  payable  ;  he  was  not  in ;  left  a  letter  on  his  desk,  demanding 
])ayment ;  then  jmt  a  notice  in  post  office  to  Barrett,  giving  him  notice  ;   Barrett 
lived  on  Charleston  Neck. 

George  Gibbon,  sworn.  Has  a  bond  and  mortgage  in  his  possession  from  George 
W.  Glover  to  George  W.  Logan  ;  was  assigned  tohim  in  trust  to  secure  Barrett's 
endorsements  for  Logan ;  Logan  and  Barrett  came  to  his  counting  room,  and  had 
a  giMHl  deal  to  say  on  this  subject;  witness  told  them  if  they  designed  to  put 
anything  into  his  hands,  they  must  state  the  object  in  writing;  the  understanding 
was,  that  the  bond  and  mortgage  was  to  bo  left  with  liim  ;  and  he  understood, 
from  the  convei-sation,  as  a  security  to  Barrett. 

Wm.  E.  Ilaijne,  recalled.     Proved  Barrett's  handwriting ;  he  met  Barrett  after 


472  CHARLESTON,  FEBRUARY,  1842.      VOL.  II.  [*192 

he  had  lodged  the  notice  for  him  in  the  post  office  ;  he  told  him  he  had  received 
it.  but  it  was  not  regular,  and  he  would  take  advantage  of  it ;  this  was  some  days 
after  the  notice  was  left,  and  did  not  say  when  he  received  it. 

Edward  Carcic,  sworn.  He  heard  a  conversation  between  Boyce,  the  President 
of  the  Bank,  and  Barrett,  and  had  a  conversation  with  him,  himself;  Barrett  did 
not  wish  to  be  sued  on  this  note ;  he  proposed  to  Boyce  to  see  Logan,  and  proceed 
against  him  ;  and  he  would  secure  him  in  the  ultimate  payment  of  the  note  by 
stock,  or  any  other  security ;  his  desire  was  to  avoid  a  smt  against  himself ; 
Boyce  declined  his  proposition. 

Evidence  closed. 

The  defendant's  counsel  then  moved  for  a  nonsuit,  on  the  ground,  that  there 
was  no  legal  notice  of  dishonor  given  to  Barrett,  and  there  was  no  evidence  of 
waiver  of  notice. 

The  Court  overruled  the  motion,  and  submitted  the  case  to  the  jury,  and  they 
found  a  verdict  for  plaintiff. 

The  defendant  appeals  on  the  grounds  : 

1.  That  there  was  no  notice  to  charge  the  endorser. 

2.  That  there  was  no  evidence  sufficient  to  warrant  the  presumption  of  a 
waiver  of  notice  on  the  part  of  the  endorser. 

^,  qo-i  *-4.  G.  Maqrath,  for  the  motion,  said,  there  was  only  a  single  question 
^^^^  in  the  case.  He  cited  10  J.  R.  489  ;  4  Wend.  401.  There  is  no  doubt  that 
where  both  parties  reside  in  the  same  place,  notice  in  the  post  office  is  not  suffi- 
cient :  11  J.  R.  ISO ;  8  lb.  180 ;  1  Bail.  419.  A  confession  of  judgment,  as  an 
indemnity  to  the  endorser,  is  a  waiver.  The  mere  taking  of  security  is  not 
sufficient  to  waive  notice.  Funds  must  come  into  the  hands  of  the  endorser:  19 
Wend.  421 ;  7  lb.  169  ;  5  Mass.  170. 

Petigru,  contra,  cited  from  1  Mills.  Cons.  Rep.  381,  and  said  the  case  from  1 
Bail.  412  was  conclusive  of  this  case. 

Curia,  per  Evans,  J.  The  undertaking  of  the  endorser  of  a  promis- 
sory note  is  upon  the  condition,  that  payment  shall  be  demanded  of  the 
maker  when  the  note  is  due,  and  upon  default  of  payment,  notice  shall  be 
given  to  the  endorser.  The  object  of  this  notice  is  to  enable  the  endorser 
to  protect  himself  against  his  liability  by  securing  the  debt  irom  those 
who  are  liable  to  him.  Hence  the  general  rule  is,  that  to  charge  the 
endorser,  notice  must  be  given ;  but  this  is  not  an  inflexible  rule,  and 
wherever  the  reason  of  the  rule  ceases,  it  has  been  dispensed  with.  Thus 
in  the  case  of  Comey  vs.  Dacosfa,  1  Esp.  R.  302,  where  the  endorser  at 
the  time  of  endorsement  took  effects  of  the  maker  into  his  hands  equal  to 
tlie  amount  of  his  liabilities,  Buller,  J.,  held  he  was  not  entitled  to  require 
demimd  or  notice.  The  reason  of  this  decision  was,  that  having  already 
secured  hin)self  there  was  no  necessity  for  giving  him  notice.  In  the 
caseoftiie  MechanicH^  JJank  of  Neiv  York  vs.  Grisicold,  7  Wcndall, 
1G5,  it  was  decided  that  the  endorser  of  a  promissory  note,  who,  before 
the  note  fell  due,  took  an  assignment  of  all  the  estate  of  the  maker  to 
meet  liis  responsil)ilities,  which  was  ample  security  to  him,  was  not  enti- 
tled to  insist  on  citlicr  demand  or  notice  as  a  condition  of  his  liability. 
In  the  case  o\  Jiond  vs.  Farnham,  5  Mass.  110,  before  the  note  became 
due  the  maker  became  insolvent,  and  the  endorser  took  from  him  an 
assignment  of  all  ids  ])roi»erty  to  secure  himself  against  this  and  other 
]ial)ilities.  It  was  held  he  was  not  entitled  to  notice,  although  the 
♦1041  *l*''"I*'''''y  "*^^'K"^^^  was  insuflicient  to  secure  him  against  all  his 
-•  liiil)iliiics  ;  bnt  it  secured  all  the  maker  had,  and  he  could  have 
obtained  no  other  security  even  if  notice  had  been  given.     So  also  in  the 


*194]  BARRETT   ads.    CHARLESTON   BANK.  473 

case  of  the  Bank  vs.  Myers,  1  Bailey,  419,  Myers  took  a  confession  of 
judgincnt  from  Cohen  to  secure  himself  against  his  liability  as  endorser 
on  the  note  of  Cohen.  This  was  held  to  be  a  waiver  of  his  right  to 
notice. 

The  principle  to  be  deduced  from  these  cases  is,  that  when  the 
endorser  has  secured  himself  against  his  liability,  by  an  assignment  or 
lien  upon  the  whole  or  a  sulliciency  of  the  maker's  property  as  an  indem- 
nity, notice  is  not  required  to  be  given  to  him.  IIow  does  this  case 
stand  with  these  i)rinciplcs  ?  It  appears  from  the  evidence  of  Mr.  Gib- 
bon that  the  endorsement  of  this  note  was  a  subject  of  negotiation  be- 
tween the  maker  and  Barrett  before  he  endorsed  ;  the  result  of  which  is 
set  out  in  the  following  letter  : 

Charleston,  July,  1840. 
Messrs.  Geo.  Sf  John  Gibbon  : — 

Gentlemen : — Herewith  I  deliver  you  a  Loud  of  G.  W.  Glover  in  my  favor,  with 
my  endorsement  in  blank  thereon,  dated  14th  February,  1840,  conditioned  for 
nine  hundred  dollars  and  interest,  secured  by  mortgage  of  a  house  and  lot  in 
Hasell  street,  which  I  deposit  with  you  in  trust  as  collateral  security  for  the  en- 
dorsement by  Jacob  Barrett  of  my  note  at  same  date,  nine  hundred  dollars,  and 
for  the  endorsement  by  him  of  the  futui'e  renewal  or  renewals  of  said  note ;  on 
non-})aynient  by  nie  of  which  note  or  any  of  its  renewals  you  will  please  deliver 
over  the  bond  and  mortgage  to  Mr.  Jacob  Barrett,  and  take  his  receipt  for  the 
same.  Respectfully, 

GEO.  W.  LOGAN. 

I  understand  from  this  evidence,  that  the  delivery  of  the  bond  and 
mortgage  to  Gibbon,  in  trust,  to  be  delivered  to  Barrett  in  case  of  Logan's 
failure  to  pay  the  note  or  its  renewals,  was  the  condition  upon  which 
Barrett  agreed  to  endorse  the  note.  Upon  the  security  being  given  he 
was  *willing  to  endorse  and  did  endorse  Logan's  note.  If  he  had  r^c-iq- 
not  regaided  the  secuiity  as  ample,  he  would  not  have  done  so.  '- 
His  case  rests  on  the  same  principle  and  is  not  distinguishable  from  the 
cases  cited  above.  It  seemed  to  have  been  conceded  in  the  argument, 
that  if  the  bond  and  mortgage  of  Glover  had  been  of  the  whole  estate  ef 
Logan,  then  on  the  authority  of  the  cases  cited  from  Wendell  and  Mas- 
sachusetts Reports  the  decision  was  right  in  the  Court  below.  But  I 
apprehend  the  cases  cited  do  not  depend  on  that  circumstance,  but  on 
the  fact  that  the  security  was  ample  or  all  that  could  be  obtained.  The 
case  of  the  Bank  vs.  Myers  did  not  depend  on  the  fact,  that  it  covered 
all  the  pro])crty.  The  security  in  that  case  was  a  confession  of  judg- 
ment, wliich  certainly  does  not  create  a  lieu  on  all  of  the  defendant's  pro- 
perty ;  choses  in  action,  which  constitute  a  large  part  of  the  wealth  of 
commercial  men,  are  not  reached  by  either  judgment  or  execution.  It 
seems  to  me  that  Barrett,  having  taken  what  he  considered  ample 
security  against  his  liability  on  his  endorsement,  and,  in  the  absence  of 
any  proof  to  the  contrary,  we  must  suppose  it  an  ample  indemnity,  has 
waived  his  right  to  insist  on  notice  of  nonpayment  by  the  maker,  and 
the  motion  must  therefore  be  dismissed. 

O'Neall,  Butler  and  Wardlaav,  JJ.,  concurred. 


474  CHARLESTON,  FEBRUARY,  1842.      VOL.  IL  [*196 

*196]        *E.  C.  Keckley  ads.  Thos  H.  Harris,   Adm'r. 

1.  Wliere  the  agent  of  a  landlord,  under  liis  own  hand  and  seal,  issued  a  distress 
'  warrant  against  the  goods  of  the  tenant,  and  constituted  a  third  party,  as  bailiff 

to  lew  the  warrant,  it  was  held  competent  for  the  landlord  to  come  in  and  sub- 
stitute himself  for  the  agent  on  the  record,  and  avow  for  rent  in  arrear. 

2.  A  replevin  bond,  given  to  the  sheriff  by  a  party,  to  prosecute  his  action  in 
replevin  to  judgment,  is  assignable,  and  the  surety  thereto  is  liable  to  the  same 
extent  that  the  principal  would  be. 

Before  Earle,  J.,  at  Charleston,  May  Term,  1841. 

This  was  an  action  against  the  defendant,  as  surety  of  a  replevin  bond. 
The  pleas  were  non  est  factum,  and  mil  tiel  record.     The  declaration 
set  forth  a  distress  by  plaint  if,  of  the  goods  of  one  David  Clayton,  that 
Clayton  had  replevied  on  plant  of  a  wrongful  distress  by  plaintiff,  and 
l)on"d  with  the  usual  condition,  and  defendant  as  surety,  to  prosecute  his 
suit  with  effect  "  against  Henry  D.  Lesesne,  agent  of  Thomas  H.  Harris, 
administrator,    and  John   A.    Buckheister,    (the   bailiff,)   that    plaintitf 
avowed  for  rent,  obtained  judgment  and  issued  execution,   and  that  the 
goods  replevied  were  levied  on  and  sold  under  execution,  and  brought 
less  money  than  the  rent  and  costs  ;  whereupon  the  sheriff  assigned  the 
bond  to  plaintif,  and  whereby  an  action  accrued  to  him  against  defend- 
ant, for  the  residue  of  the  rent  and  costs.     To  sustain  his  declaration, 
plaintilf  produced,  1.   An  affidavit  by  Henry  D.   Lesesne,  as  his  agent, 
swearing  to  rent  due  to  plaintiff.     2.   A   distress  warrant,  signed   and 
sealed,  not  by  plaintiff,  but  by  Henry  D.  Lesesne,  and  he  not  signing  and 
sealing  in  the  name  of  his  principal,  "  thus,  Thomas  H.  Harris,  seal,  per 
Henry  D.  Lesesne,  agent,"  but  describing  himself  as  agent,  and  putting 
his  own  seal,  thus,  "  Henry  D.  Lesesne,  seal,  agent  of  Thos.  H.  Harris, 
administrator,"  and  in  the  body  of  the  warrant,  he  as  agent,  and  not  in 
the  name  of  his  principal,  appointing  the  bailiff  to  levy  for  rent  alleged 
to  Ije  due,  not  to  his  principal,  but  to  himself  as  agent.     3.  The  original 
replevin  writ,   sued  out  by  Clayton,  which  made  plaint  of  an  unlawful 
distress,  not  I)y  plaintitf,  as  alleged  in  the  declaration,  but  by  Lesesne,  as 
agent,  and  Buckheister  as  bailiff,  and  was  served  on  them,  and  not  on 
;f,,,..,-j   phiinlilf.     4.   The  original  declaration  in   replevin,  counting  *on 
'-'   an  unUiwful  distress,  not  by  plaintiff,   but  by  Lesesne  and  Buck- 
heister.    5.   A  confession  of  judgment  by  Clayton,   on  the  back  of  the 
decl'irnlvm,  for  the  rent  due  and  destrained  for,  with  interest  and  costs, 
waiving  all  errors,  and  consenting  to  an  immediate  signing  of  judgment, 
and  issue  of  execution.     6.  The  original  rei)levin  bond,  conditioned  to 
])rose(;ute  the  replevin   suit,  with  effect  against  Lesesne,  as  agent,   and 
Buckheister,  and  not  against  plaintilf,  or  return  the  goods,  and  in  default 
or  in  case  the  goods  returned  should  be  insutfcient  to  pay  the  rent,  and 
expenses,  tlien  to  pay  the  same  or  the  deficiency,  as  the  case  might  be. 
7.  An  avowry,  not  l)y  Lesesne,  the  defendant  in  replevin,  but  by  plaintiff 
who  was  n(j  parly  to  the  replevin  suit,  on  a  separate  paper,  for  rent  due 
]»luintiff.      H.   A  judgment  entei'ed  up  on  the  confession  of  Clayton,  not 
in  favor  of  Lest-sne,  the  party,  but  of  Harris,  a  stranger  to  the  suit.      9. 
A  rd()r})o  habrndo  cvm  ft.  fa.  against  Clayton,  directing  the  sheriff  to 
cause  return  uf  the  goods  replevied,  not  to  Lesesne,  the  destrainer  and 


*19T]  KECKLET  ads.  HARRIS,  adm'r.  475 

defendant  in  replevin,  but  to  plaintiff.  10.  The  return  of  the  sheriff, 
that  he  had  levied  and  sold  the  goods  replevied,  and  of  the  proceeds  of 
sale,  insufficient  to  pay  the  rent.  11.  An  assignment  of  the  replevin 
)>oud,  not  to  Lesesne,  l)ut  to  phiintiff.  On  this  evidence  plaintiff  closed 
and  rested  his  case,  and  defendants'  counsel  moved  for  a  nonsuit,  on  the 
grounds : 

1.  or  variance  between  the  declaration  and  the  proof. 

2.  Of  incurable  irre<>:idarity  in  the  i)roceetlings  in  replevin,  subsequent  to  the 
declaration  and  confession  ofjudgnieiit. 

3.  or  incompetency  in  the  present  plaintiff  to  sustain  the  action,  he  having 
been  no  party  to  the  replevin  suit,  and  the  judj^mcnt  in  his  favor  being,  there- 
fore, a  nullity,  and  the  assiguuieut  of  the  replevin  bond  to  him  illegal. 

The  motion  for  a  nonsuit  was  overruled  by  the  Court,  and  the  case 
went  to  the  jury.  The  Court  declined  to  charge  the  jury,  whether  the 
original  distress  was  lawful  or  unlawful.  The  jury  found  for  the  plaintiff, 
the  amount  sued  for,  with  interests  and  costs. 

A  motion  was  made  before  the  Court  of  Appeals  at  ^Charleston  r^i-.  j  qo 
for  a  nonsxdt  or  in  arreM  of  jiuUjment,  on  the  grounds  takeu  ^ 
at  the  trial,  and  for  a  nexo  trial,  on  the  additional  grounds  : 

1.  That  his  Honor,  it  is  respectfully  submitted,  should  have  charged  the  jury, 
that  the  original  distress,  in  this  case,  was  unlawful,  having  been  made  by  one' 
to  wliom  no  rent  was  due,  and  who  had  no  power  to  appoint  a  badiff  to  make 
the  distress. 
2.  That  the  verdict  was  contrary  to  law  and  evidence. 

Yeadnn,  for  the  motion,  said — Can  an  agent  of  a  landlord  appoint  a  bailiflf  to 
distrain  ? 

If  this  action  had  been  commenced  against  Clayton,  the  waiver  of  error  in  the 
confessiun  of  judgment  on  the  declaration  might  have  been  sustained;  but  tliis 
action  is  against  the  surety,  and  must  fall. 

When  the  surety  entered  into  the  bond,  he  entered  into  an  obligation  to  prose- 
cute his  suit  to  effect,  &c. 

On  the  1st  ground.  The  declaration  was  not  supported  by  the  proof.  Can  a 
party  not  allowed  to  sue  come  in  and  enter  up  judgment  and  exejution  ?  Could 
Harris  take  an  assignment  of  the  replevin  bond?  Can  a  sheriff  assign  a  replevin 
bond  to  a  stranger  to  the  record 't 

The  avowant  is  the  only  person  to  whom  the  bond  can  be  assigned. 

Pftiijru,  contra,  contended  that  there  was  no  irregularity,  but  if  there  was,  it 
could  not  avail  the  surety  in  this  action. 

It  must  be  taken  that  Harris  was  the  landlord,  and,  consequently,  had  the  right 
to  ajqioint  an  agent  to  act  for  him. 

The  aiient,  then,  having  the  right  to  distrain,  by  authority  from  the  landlord, 
could  afi)poLut  a  baililf  to  act  for  him. 

The  in  fgularity  complained  of  is  the  difference  between  the  affidavit  and  the 
warrant  of  distress. 

If  one  acts  for  another,  and  his  acts  are  afterwards  confirmed  by  the  person,  it 
is  a  good  authority ;  cited  Thomas  vs.  Yutvs,  1  McM.  179. 

Whenever  a  party  may  recover  against  the  agent,  he  may  also  recover  against 
the  principal,  cited  2  McC.  1C4,  *Tulvande  vs.  Crips.     Replevin  only  lies  in  r^jt-ic^Q 
case  of  a  taking  for  rent.     It  is  not  concurrent  with  trespass  or  any  other  ^     ' 
action.     Clayton,  by  confessing  judgment,  has  waived  all  right  to  complain. 

Harris  is  the  real  avowant,  and  the  party  cannot  prevent  him  from  coming  in. 

The  sheriti"  had  the  right  to  assign  his  bond,  as  he  did. 

Ycadon,  in  reply,  said  he  represented  the  surety  in  this  case,  and  not  Clayton. 

He  denied  that  Clayton  had  forfeited  his  bond,  and,  consequently,  that  the 
surety  is  not  liable.     If  the  bond  has  not  been  forfeited,  how  can  the  party  recover 


476  CHARLESTON,  FEBRUARY,  1842.      VOL.  IL  [*199 

to  whom  the  hond  was  assigned  ?  The  case  of  Talvande  vs.  Crips,  cited  by  the 
opposite  counsel,  was  not  a  case  in  point.  '  Mr.  Yeadon  pointed  out  the  difference 
between  this  and  the  case  cited ;  referred  to  the  case  of  Steadman  vs.  Givens  ^ 
Nathans,  MSS.  (Infra,  202.) 

Curia,  per  Butler,  J.  It  must  be  conceded  in  this  case,  that  the 
only  parties  that  were  liable  to  be  sued  in  replevin,  after  the  proceed- 
ino-'s  in  distress  had  been  commenced,  were  Lesesne  and  Buckheister, 
The  one  assumed  the  position  of  landlord,  and  by  warrant  under  his  own 
.seal,  constituted  the  other  his  bailiff.  Harris  may  or  may  not  have 
'  authorized  the  distress  warrant  to  be  issued,  or  might  or  might  not  have 
adopted  the  acts  of  the  parties  under  it  This  is  not,  however,  conclu- 
sive of  the  question  in  the  case.  After  the  action  of  replevin  had  been 
commenced,  the  rights  and  relation  of  the  parties  underwent  material 
changes  ;  Harris,  the  true  landlord,  came  in  and  adopted  and  confirmed 
all  the  acts  of  his  representative  and  agents.  It  might  not  have  been  in 
the  power  of  Lesesne  to  avow  for  rent  due  his  principal,  as  he  did  not 
perform  the  office  of  the  actual  bailiff.  As  against  Lesesne,  the  tenant 
Clayton  might  have  been  able  to  maintain  his  right  to  the  property 
replevied — no  rent  being  due  to  Lesesne  himself,  and  he  not  having  any 
of  the  rights  of  the  actual  landlord.  But  where  the  distress  has  been 
made  for  rent  due  the  landlord,  it  is  in  his  power  to  come  in  and  sanction 
the  distress,  and  thereby  to  enable  the  bailiff  to  justify  the  taking,  for 
*«>nni  ^^^^  ^"  arrear,  in  the  name  of  the  landlord.  Tlie  case  of  *Sfead- 
-■  man  vs.  Givins  (&  Xathans,  decided  in  1834,  was  in  some  parti- 
culars like  the  one  under  consideration.  Givins,  acting  as  the  agent  of 
Mrs.  Wigfall,  appointed  Nathans  his  bailiff,  to  execute  a  distress  warrant 
for  rent  alleged  to  be  due  Mrs.  Wigfall.  It  was  held,  that  Givins  had 
no  right  to  issue  such  a  warrant  in  his  own  name — nor  could  he  avow  for 
rent  due  to  another.  But  Judge  Harper,  who  delivered  the  judgment  of 
the  Ap))eal  Court,  confirming  the  Circuit  decision  made  by  himself,  con- 
cludes thus  :  "  Subsequent  assent  amounts  to  authority,  (Saund.  347,  n. 
4.)  If  Givins  had  any  actual  share  in  making  the  distress,  and  they  had 
authority  from  Mrs.  Wigfall,  or  she  was  willing  to  adopt  their  act,  both 
should  have  justified  as  bailiffs.  Or  perhaps,  if  Givins  was  not  actually 
present  at  the  taking  of  the  distress,  but  had  authority  from  Mrs.  Wig- 
fall to  employ  Nathans  as  bailiff,  he  might  have  pleaded  non  cejDit.  In 
that  case,  the  authority  of  Nathans  would  have  been  direct  from  Mrs. 
Wigfall ;  he  should  have  justified  as  her  bailiff,  while  Givins  being  merely 
regarded  as  the  medium  through  which  the  authority  was  conveyed,  would 
not  have  been  considered  as  a  party  to  the  taking."  In  this  case,  it  can- 
not be  doul)ted  that  Mr.  Lesesne  had  full  authority  from  Harris  to  collect 
the  rent,  and  to  employ  all  necessary  and  legal  means  to  effect  the  end. 
The  Ijuiliff,  Buckheister,  was  accordingly  employed  to  make  the  distress, 
for  his  act  was  adopted  by  the  subsequent  assent  of  the  landlord.  All 
the  acts  tiuit  had  ijeen  done,  were  under  a  derivative  authority  from  Har- 
ris. He  was  the  party  interested  ;  and  was  it  not  competent  for  him  to 
assume  his  jiosiiion  on  the  record,  as  the  rightful  avowant  ?  The  tenant's 
own  acknowlcdgnicMt  of  his  landlord's  right  to  the  property  distrained, 
as  estaliii.shed  l)y  the  confession  of  judgment,  precluded  him  from  making 
any  objcdion  to  the  regularity  and  propriety  of  the  proceeding.  The  great 
object  of  the  action  of  replevin  is  to  settle  the  controversy  about  rent; 


*200]  KECKLET  ads.  HARRIS,  adm'r.  477 

with  this  view,  the  landlord's  rights  should  always  be  regarded ;  in  such 
cases  there  can  be  no  valid  objection,  why  he  should  not  take  the  place  of 
his  mere  representative  and  bailiif. 

In  the  case  of  Talvande  and  Cripps,  2  McCord,  165,  Judge  ISTott 
remarks,  after  speaking  of  the  nature  of  the  action  of  rei)levin,  "  The 
procedings,  *therefore,  ought  to  be  so  modelled  as  to  preserve  rif()(^■, 
the  relative  rights  of  the  parties.  The  plaintiff  has  a  right  to  ■-  "^ 
make  the  landlord,  (or  the  party  destraining)  a  party  to  the  action,  as 
well  as  the  officer  executing  the  warrant.  So,  on  the  other  hand, 
the  landlord  may  come  in  and  be  made  a  party,  and  defend  his  bailiff 
against  the  actiou  ;  in  the  same  manner  as  a  landlord  may  come  in  and 
be  substituted  in  the  place  of  his  tenant,  in  an  action  of  trespass  to  try 
title."  This  view  of  the  law  in  that  case  was  carried  out,  by  allowing 
the  heirs  to  come  in  and  maintain  the  avowry  that  had  been  put  in  by 
the  original  party  on  the  record,  after  his  death.  The  distress  had  been 
made  by  an  administrator,  the  goods  destrained  by  him  were  replevied 
by  the  tenant ;  but  the  action  was  not  allowed  to  abate  by  the  death  of 
the  avowant :  bnt  those  who  claimed  under  him  were  allowed  to  establish 
their  right  to  the  rent.  The  bond  was  no  doubt  given  by  the  i>]aiiitiff 
with  security,  to  return  the  goods  again,  if  he  should  fail  to  establish  the 
wrongful  taking.  That  bond  must  always  inure  to  the  benefit  of  the  true 
party  in  interest ;  and  where  he  is  regularly  let  in  on  the  record,  he  has 
all  the  rights  of  the  original  avowant ;  and  when  he  cannot  have  his 
goods  returned  by  a  retorao  habendo,  he  is  entitled  to  have  the  bond 
a.ssigned  to  him  to  go  against  the  surety  ;  for  without  such  bond  he 
would  never  have  been  deprived  of  the  benefit  of  the  distress.  It  is  true, 
that  but  few  of  the  British  statutes(a)  on  the  subject  of  replevin,  have 
been  made  of  force  in  this  State,  by  express  enactment,  but  they  have 
been  adopted  in  practice  ;  and  under  this  practice,  replevin  bonds  are 
assignable  to  the  avowant  on  the  record. (6)  When  the  writ  of  execution 
fails  to  give  indemnity  for  the  injury  which  the  landlord  has  sustained  by 
the  replevin  of  the  goods,  the  surety  to  such  a  bond  subjects  himself  to 
all  the  liabilities  of  his  principal ;  and  when  the  principal  fails  to  return 
the  goods  detained,  aiid  nulla  bona,  returned  on  i\\Gfi.  fa.,  the  surety  is 
then  to  l)ecome  answerable.  He  must  abide  the  acts  and  become  lial)le 
by  the  default  of  the  principal.  At  any  rate,  he  cannot  make  abetter 
defence  than  the  ])rii)cipal  could  have  made  ;  nor  take  exceptions  which 
the  principal  could  not  have  taken.  At  no  part  of  the  proceedings  in 
this  case,  *could  the  present  defendant  have  interfered  to  exone-  r:^.^^.^ 
rate  Clayton  from  liability  to  pay  rent  to  the  plaintiff;  and  why  ^  "^-^ 
should  he  now  be  permitted  to  relieve  himself  from  liability  ? 

We  concur  in  the  circuit  decisions,  and  dismiss  the  motion. 

RicnARDSO.v,  O'Xeall  and  Evans,  JJ.,  concurred. 

(a)  Soe  1  Sp.  286 ;  2  Ricli.  402. 

(6)  1  McC.  300;  Act  of  1839,  11  Stat.  36,  §  55.     An. 


■178  CHARLESTON,  FEBRUARY,  1842.      VOL.  II.  [*202 

n  THE  COURT  OF  3. 


GiTENS  &  Nathans  ads.  T.  Steedman. 
Before  Butler,  J.,  at  Charleston,  February  Terra,  1834. 

The  following  is  the  report  of  the  presiding  Judge. 

The  facts  ofthis  case  are  these  :  A  warrant  of  distress  was  levied  on  the 
eoods  and  chattels  of  the  plaintiff,  signed  by  Givcns,  agent  of  Sarah  Wigfall. 
But  the  warrant  recites  that  it  was  issued  for  rent  due  by  plaintiff  to  defendant, 
Givens,  as  his  landlord.  Upon  reading  the  warrant,  it  would  appear,  that  the 
relation  of  landlord  and  tenant  existed  between  Givens  and  Steedman.  It  is 
true,  Givens  signs  himself,  ayeiit  of  Sarah  Wiyfall,  but  that  does  not  make 
him  so. 

In  this  avowry,  Givens  endeavors  to  protect  himself,  for  the  distress  made 
under  his  authority,  by  alleging  that  rent  was  due  one  Sarah  Wigfall.  If  he 
issued  his  warrant  upon  his  personal  responsibility,  as  I  think  he  did,  he  cannot 
protect  himself  by  avowing  that  rent  was  due  to  another.  At  any  rate,  he 
cannot  do  so  without  showing  his  authority,  either  to  enter  or  to  authorize  a 
bailiff.  No  such  authority  is  shown  or  averred.  He  commenced  the  proceed- 
ings on  his  own  responsibility,  and  ought  not  to  protect  himself,  by  avowing 
that  another  person  was  entitled  to  the  rent.  One  may  make  himself  the 
tenant  of  the  agent  of  another,  and  in  that  case,  the  agent  could  destrain, 
because  the  relation  of  landlord  and  tenant,  would  exist  between  them.  The 
tenant  ought  not  to  claim  against  the  terms  of  the  demise  under  which  he 
holds  the  premises.  He  may  be  tenant  to  another  by  a  steward,  but  he  con- 
sents to  it. 

1  doubt  whether  the  landlord  can  delegate  his  authority,  to  enter  and 
destrain,  except  to  a  bailiff,  duly  authorized  for  the  purpose.  Can  a  landlord 
delegate  to  an  agent,  the  authority  to  make  a  bailiff?  If  he  can,  the  authority 
of  the  agent  should  be  of  as  high  a  character  as  that  required  for  the  bailiff. 
Aud  when  such  agent  avows  for  rent,  he  sliould  show  his  authority. 

A  tenant  may  be  willing  to  subject  himself  to  a  landlord,  from  whom  he 
leases,  but  not  to  an  agent  with  whom  he  is  not  acquainted,  and  who  might 
exercise  his  delegated  authority  capriciously.  The  remedy  by  distress  is 
summary,  and  ought  to  be  watched  with  jealousy ;  at  least  it  should  not  be 
unnecessarily  extended. 

It  is  a  rule  of  law,  that  rent  must  be  reserved  to  him  from  whom  the  land 
proceeded,  or  to  his  lawful  representative,  and  cannot  be  reserved  to  a  stranger, 
Kent  Com.  3  vol.  o70.  .  The  relation  of  landlord  and  tenant  is  somewhat 
personal,  and  none  but  those  who  own  the  land  sliall  have  rent  reserved  or 
have  tlie  jiower  to  collect  it  by  distress.  The  landlord  n)ay  enter  himself  or  by 
*2()3]  ''ii^  iigi^iit,  l)ut  it  should  be  an  agent  expressly  *with  authority  to  enter. 
J  In  tliis  case,  Givens  did  not  enter,  but  authorized  a  bailiff  to  enter, 
without  even  showing  authority. 

'J"he  demurrer  was  sustained. 

GROUNDS    OF   APPEAL. 

1.  Tli;it  tlic  l;iii(ll.M(l  lias  the  power  to  appoint  an  agent  to  sign  a  distress 
warrant,  aud  crcjilo  ;i  l);iilitr  to  distrain. 

2.  'J'liat  the  a;,'.'iicy  o!'  .Icilin  (iivenn  was  sullicicntly  averred  on  the  record. 

3.  Tliat  tlie  plainliir  by  the  pleadings  recognized  "and  admitted  the  agency. 

4.  That  the  i.ower  vested  in  Givens  as  agent  was  legally  executed.     If  not,  the 


*20^]  GIVENS   &    NATHANS   ads,    STEEDMAN.  479 

plaintiff  could  not  take  exception  to  it,  nor  could  the  Court  know  it,  as  nothing  in 
relation  to  the  mode  of  execution  appeared  by  the  pleadings. 

5.  That  the  avowry  need  not  be  by  the  landlord,  but  may  be  by  an  agent. 

6.  That  the  decision  sustaining  the  demurrer  is,  in  other  respects,  contrary  to 
law. 

Titos.  S.  and  //.  Grimke,  for  the  motion. 

Ycadon,  contra. 

Curia,  per  Harper,  J.  We  think  the  avowry  defective,  and  the 
motion  must  be  refused  It  is  said,  that  the  terras,  "  making  cognizance" 
or  "  well  acknowledges,"  imports  a  justification  in  the  right  of  another. 
2  Chit.  PI.  557,  N.  C.  "Avow"  in  like  manner,  imports  a  justifying  in 
one's  bwn  right;  and  in  the  same  place  we  are  told,  that  if  one  avows 
and  the  other  acknowledges,  without  saying,  as  bailiff  to  the  first,  it  will 
be  error.  The  defendant,  Givens,  avows  the  taking,  thus  importing  a 
justification  in  his  own  right,  and  shows  the  rent  due  to  Mrs.  Wigfall ; 
and  Nathans  acknowledges,  as  bailiff  of  Givens,  whom  the  avowry  shows 
not  to  ha\e  been  the  landlord.  Any  agent  to  make  a  distress,  is  termed 
n  bailiff.  "If  a  man  take  cattle  for  services  due  to  the  lord,  if  the  lord 
afterwards  agree  to  the  taking,  he  shall  be  adjudged  his  bailiff,  though 
he  was  not  his  bailiff  in  any  place  before."  1  Bac  Ab.  Tit.  Bailiff,  6. 
Subsequent  assent  amounts  to  authority.  1  Saun.  347,  n.  4.  If  Givens 
had  any  actual  share  in  making  the  distress,  and  they  had  authority  from 
Mrs.  Wigfal!,  or  she  was  willing  to  adopt  their  act,  both  should  have 
justified  as  bailiffs.  Or  perhaps,  if  Givens  was  not  actually  present  at 
the  taking  of  the  distress,  but  had  authority  from  Mrs.  Wigfall  to  employ 
Nathans  as  bailiff,  he  might  have  pleaded  non  cepit  In  that  case,  the 
authority  of  Nathans  would  have  been  direct  from  Mrs.  Wigfall,  and  he 
should  have  justified  as  her  Iniiliff ;  while  Givens,  being  merely  regarded 
as  the  medium  through  which  the  authority  was  conveyed,  could  not  have 
been  considered  as  a  party  to  the  taking. 

The  motion  is  dismissed. 

Johnson,  concurred. 


480  CHARLESTON,  FEBRUARY,  1842.      VOL.  II.  [*204 

IN  THE  COUHT  OF  ERRORS. 


*-''(U1  *The  State  or  South  Carolina  vs.  E.  Waterman,  et  al., 
"     -^  sureties  of  J.  L.  E.  Easterling,  late  Sheriff  of  Georgetown  District. 

Tliese  were  actions  of  debt  on  the  official  bond  of  Easterling,  deceased,  late  Sheriff 
of  Georgetown  district.  The  writs  were  issued  to  Spring  Term,  1836,  and  the 
actions  were  prosecuted  for  the  benefit  of  one  Taylor,  of  New  York.  On  the 
2l>th  April,  1836,  after  the  commencement  of  these  suits,  C.  &  C,  wlio  were 
judgment  creditors  of  Easterling,  filed  a  bill  in  the  Court  of  Equity  for  George 
town  district  against  his  executor  for  an  account.  On  the  27th  of  the  same 
month,  the  Court  made  an  order  for  the  creditors  to  file  statements  of  their 
claims  on  oath,  by  the  1st  January,  1837,  with  the  Commissioner  ;  and  another 
order,  enjoining  them  from  proceeding  at  law  against  the  executor.  The  time 
for  filing  claims  was  afterwards  extended  to  Januaiy,  1838.  In  January,  1838, 
the  Commissioner  made  a  report  of  claims  which  had  been  filed  in  his  office 
against  Easterling,  in  his  official  capacity  only  ;  and  the  Court  thereupon  made 
a  decree  that  the  sureties  pay  the  amount  of  said  claims  to  the  Commissioner, 
and  that  execution  issue  against  them  accordingly  ;  and  further,  that  the  credi- 
tors of  the  sheriff  who  had  failed  to  file  their  claims,  be  perpetually  enjoined 
from  pursuing  the  same  against  the  sureties.  Taylor's  claim  was  not  filed  in 
the  Commissioner's  office,  and,  at  Fall  Term,  1838,  these  cases,  which  had  been 
on  the  writs  of  inquiry  docket  since  Fall  Term,  1836,  were  struck  off.  Notice 
was  afterwards  given  to  the  defendants  that  a  motion  would  be  made  to  restore 
them  ;  and  at  Spring  Term,  1839,  such  a  motion  was  made,  and  affidavits 
offered  on  both  sides.  After  hearing  counsel,  the  Court  made  an  order  to  restore 
them  to  the  docket.  The  defendants  gave  notice  of  an  appeal  from  this  order, 
but  did  not  prosecute  it.     On  tlie  call  of  these  cases  for  trial,  at  Spring  Term, 

.  184(i,  the  defendants  again  moved  to  strike  them  from  the  docket,  and  his 
honor.  Judge  Evans,  presiding,  granted  the  motion.  Held,  that  it  was  an 
improper  order  in  the  Court  below,  and  the  cases  were  ordered  lo  be  restored  to 
the  docket. 

Before  Evans,  J.,  at  Georgetown,  Spring  Terra,  1840. 

Tlie  above  abstract  presents  the  facts  of  this  case,  as  they  existed  at 
tiie  lime  liie  oidei-  was  made  by  his  Honor,  and  the  following  are  the 
grounds  upon  which  the  appeal  was  carried  up,  and  which  were  argued 
in  this  Court. 

GROUNDS    OF    APPEAL. 

1.  Because  tlie  decree  of  tlie  Court  of  Ecpiity,  in  the  case  of  C.  &  C.  against 
the  e.xcculor  of  Kusteriing-,  cannot  have  any  lurllier  effect  than  to  exonerate 
the  executor.  The  sureties  of  Easterling,  us  sherifl',  are  certainly  liable  for  all 
claims  against  the  shcrilf,  whether  filed  and  proved  agreeably  to  the  order  of 
the  Court,  or  not,  so  long  as  the  amoifnt  paid  by  them  and  distributed  under 
Haid  decree,  is  not  equal  lo  iIk;  penalty  of  their  bond. 

*20r>|       *'■"*■  l^,'-'"'^"^^*'  tliti  injunction,  ordered  by  the  Court  of  Equity,  cannot 
effect  'J'aylur's  rigiits,  as  he  was  never  a  party  to  the  proceedings  in 
the  Court  of  E(|uily  ;  neither  were  the  sureties  of  Easterling. 

3.  The  (Tedilors  of  the  sheriff  cannot  be  restricted  to  a  shorter  period  for 
bnnguig  suits  against  the  sheriffs  sureties,  on  their  bond,  than  that  established 
by  the  law  of  the  land. 

4.  Because  the  motion  to  strike  the  cases  from  the  docket  again,  was  irregu- 
lar, and  ought  not  to  have  been  entertained. 


*205]  STATE    VS.    WATERMAN.      IN  ERRORS.  481 

Curia,  per  Wardlaw,  J.  These  cases  were  struck  from  the  docket, 
either  because  it  was  supposed  the  injunction,  ordered  in  Ecpiily,  pre- 
vented the  Court  of  hiw  from  proceeding,  or  because,  under  the  view 
which  was  taken  of  the  equity  proceedings,  all  further  attempts  Ijy  the 
plaintiff  at  law,  were  considered  hopeless.  But  it  does  not  appear  to 
this  Court  that  the  Court  below  should  have  interfered  to  prevent  the 
plaintiff  from  proceeding,  if  he  would. 

An  injunction  restrains  those  upon  whom  it  is  properly  served,  accord- 
ing to  tiie  order  and  practice  of  the  Court  of  Equity  ;  for  breach  of  it, 
remedy  may  be  had  in  the  Court  from  which  it  issues ;  but  it  is  not 
served  upon  a  Court  of  law  ;  and  although  a  Court  of  law,  regulating  its 
own  ])ractice,  will  sometimes,  in  reference  to  advantages  which,  l)y  reason 
of  an  injunction  procured  by  himself,  a  defendant  at  law  might  also  ol^tain 
from  lai)se  of  time,  notice  the  fact  that  proceedings  have  been  suspended 
by  injunciion.  yet  it  will  not  undertake  to  prescribe  or  enforce  the  duty 
of  its  plaintiff  served  with  an  injunction,  but  taking  care  that  no  surprise 
be  operated,  or  unfair  advantage  gained,  will  leave  him  to  determine  his 
course,  at  his  own  i)eril. 

AYhether  there  was  an  injunction,  whether  it  had  been  served  upon  the 
plaintiff,  whether  it  restrained  proceedings  against  the  sureties,  who  were 
bound  by  it,  are  all  questions  for  the  Court  of  equity,  which  the  Court  of 
law  was  not  properly  called  on  to  decide,  and  had  not  the  means  of 
determining  The  plaintiff,  if  advised  to  pursue  his  *rights  further,  rt-ona 
must  for  himself  choose  between  proceeding  at  law,  and  going  into  ^ 
equity,  to  prove  his  demand  upon  the  foot  of  the  decree  rendered  there. 

The  Court  has  been  pressed  to  lay  down  general  rules  upon  the  sul)ject 
of  creditors'  bills,  but  being  well  content  with  the  course  of  decision 
hitherto  had  on  that  subject,  and  })erceiving  that,  to  the  reasons  upon 
which  the  jurisdiction  and  beneficial  interference  of  equity  in  the  adminis- 
tration of  complicated  and  insolvent  estates  are  elsewhere  rested,  may 
here  be  added  the  disturbance  of  legal  priorities,  which  necessarily  results 
from  the  sale  by  a  sheriff,  under  execution,  of  the  lands  of  a  deceased 
insolvent,  the  Court  declines  to  do  more  than  decide  the  questions  pre- 
sented at  the  threshold  of  the  case  in  hand. 

The  motion  is  granted,  and  the  cases  restored  to  the  docket. 

Richardson,  O'Neall,  Evans  and  Butler,  JJ.,  and  Johnson, 
Harper,  Johnston  and  Dunkin,  Chancellors,  concurred. 

Pelijru  and  Lesesne,  for  the  motion.     Hunt,  contra. 
See  Riley's  Ch.  Ca.  192.     An. 

Vol,  1—32 


4:82  CHARLESTON,  FEBRUARY,  1842.      VOL.  II.  [*207 

,^g„^  ,  The  Treasurers  vs.  Stiles  Rivers  et  al.,  Sureties  of  Wil- 
-"'-I  LiAM  Oswald,  late  Sheriff. 

In  an  action  of  debt  on  a  slieriflF's  bond,  where  the  defendants  pleaded  perform- 
ance, "  and  the  breach  assigned  by  the  plaintiff  -was,  that  it  was  the  duty  of  the 
sheriff  to  collect  and  pay  over  all  tax  executions  which  might  be  lodged,  and 
that  on  the  first  day  of  June,  1835,  there  were  tax  executions  to  the  amount  of 
$1,739  78  lodged  in  his  office,  and  that  he  did  not  collect  and  pay  them  over." 
To  the  plea  of  performance,  there  was  a  replication  by  the  plaintiff,  and  the 
defendants  demurred  specially  for  the  cause  that  the  tax  executions  making  the 
ao-trreo-ate  were  not  specified.  The  demurrer  was  sustained,  and  the  Ajjpeal 
Court  refused  to  reverse  the  decision. 

Before  O'Neall,  J.,  at  Colleton,  Spring  Term,  1841. 

These  were  actions  of  debt  on  the  official  bond  of  Wm.  Oswald, 
the  late  sheriff  of  Colleton  district,  during  bis  term,  commencing  in 
1825.  The  defendants  pleaded  performance,  and  the  breach  assigned, 
was,  that  it  was  his  duty  to  collect  and  pay  over  all  tax  executions 
which  might  be  lodged,  and  that  on  the  first  of  June,  1825,  there  were 
tax  executions  to  the  amount  of  $1739  78,  lodged  in  his  office,  and  that 
he  did  not  collect  and  pay  them  over.  The  defendants  demurred  spe- 
cially, for  the  cause,  that  the  tax  executions,  making  the  said  aggregate, 
are  not  specified. 

The  Act  of  1801,  (Acts  of  1801,  p.  426,)  directs  that  "the  tax  collec- 
tors shall  take  the  sheriff's  receipt  for  such  executions  for  taxes  as  they 
may  have  lodged  with  him  ;  which  receipt  they  shall  produce  in  settle- 
ment with  the  treasurer  ;  and  it  shall  be  the  duty  of  the  Treasurer  to 
transmit  without  delay,  to  the  Comptroller,  certified  copies  of  all  such 
receipts,  to  the  end  that  he  may  be  enabled  to  inspect  the  conduct  of  the 
sheriff  thereon."  The  Act  of  1813,  (Acts  of  1813,  p.  21,)  provides,  that 
the  sheriffs,  within  ninety  days  after  the  lodgment  of  tax  executions, 
"  shall  make  to  the  Comptroller  a  full  and  complete  return  thereof;"  and 
failing  to  do  so,  the  Comptroller  is  directed  to  "  cause  him  to  be  debited 
ia  the  books  of  the  Treasury,  with  the  full  amount  of  his  receipts  ;"  and 
the  Act  declares,  that  he  shall  not  afterwards  be  entitled  to  any  credit  for 
executions  by  him  afterwards  returned  "nulla  bona,'^  or  "  non  est 
inventus." 

*208l  *^^  ^^^  under  this  last  Act,  that  the  Solicitor  undertook  to 
-j  su]i])ort  his  replication.  The  Court  ruled,  that  it  derived  no  aid 
from  it.  If  his  replication  had  set  out,  that  the  sheriff  stood  debited  on 
the  l)Ooks  of  the  treasury  to  the  amount  of  $1739  78,  for  tax  executions 
lodged,  and  not  returned,  as  by  his  receipt  of  the  first  June,  1825,  and 
that  he  had  failed  to  pay  this  sum,  then  it  might  have  been  a  breach  well 
assigned  under  the  Act.  But  as  the  replication  now  stands,  it  charges 
the  lodgment  of  sundry  tax  executions  to  the  amount  of  §1739  78,  and 
that  they  were  not  collected  and  i)aid  over.  This  breach,  it  will  be 
observed,  does  not  comjilain  that  they  were  not  returned  within  ninety 
flays  after  lodgment,  l)ut  proceeds  on  the  general  liability  of  the  sheriff 
for  not  collecting  and  paying  over.  The  object  of  pleading,  is  to  nar- 
row the  grounds  between  the  jtarties  in  its  several  stages,  and  to  reduce 
general  charges  to  more  definitencss  and  precision,  as  the  parlies  con- 


*208]  BOWLING    ET  AL.    (uh.    HODGE.  483 

tinnc  to  plead,  so  that  the  defeiidants  may  know  the  very  matter  with 
which  the  plaintiff' proposes  to  charge  them.  The  replication  here  leaves 
everything  uncertain.  The  demurrer  was  sustained.  The  plaintiffs 
appeal,  ou  the  ground  that  the  decision  was  contrary  to  law. 

Curia,  per  O'NEAiiL,  J.  This  Court  concurs  in  the  judgment  below. 
It  is  plain  that  the  breach  assigned,  does  not  make  the  sheriff  liable  for 
the  tax  executions  lodged.  For  it  is  not  his  duty  to  collect  and  pay 
over  in  all  cases  ;  it  is  his  duty  to  collect,  if  he  can,  and  when  collected, 
to  pay  over — but  if  he  cannot  collect,  it  is  his  duty  to  return  "nulla 
bona,^^  or  "  non  est  inventus  ;^^  and  if  he  so  does  his  duty,  he  is  dis- 
charged. For  anything  which  appears  on  the  face  of  the  replication,  the 
sheriff  may  have,  within  proper  time,  returned  every  execution  lodged 
with  him,  "nulla  bona,^''  or  "  7ion  est  inventiis.'^ 

Independent,  however,  of  this,  I  think  when  the  plaintiff's  cause  of 
action  embraces  many  items  or  subjects  of  the  same  kind,  and  to  each  of 
them,  if  particularized,  the  defendant  may  have  a  defence,  of  which  he 
could  not  avail  himself,  by  a  general  answer  to  the  replication,  then  it 
ought  to  set  out  the  particulars.  This,  I  think,  *distinguishes  r:(:c)/-|Q 
this  case  from  the  rule  so  well  and  correctly  stated  in  2  Saunders,  '- 
411,  note  4. 

Here  the  defendant's  principal  may  have  paid  over  some  of  the  execu- 
tions— some  he  may  have  returned  "nulla  bo7ia,^^  some  he  may  have 
returned  "  non  est  inventus.''^  Here  are  three  distinct  defences,  which 
could  not  come  in  under  a  general  traverse  of  the  replication.  Hence 
the  necessity  for  more  particularity,  and  a  clear  assignment  of  the  parti- 
culars in  which  the  sheriff  failed  to  do  his  duty. 

The  motion  is  dismissed. 

BiCHARDSON,  Evans,  Butler,  and  "Wardlaw,  JJ.,  concurred. 
Edwards,  for  the  motion.     Rhett,  contra. 

See  Supra,  14G.     An. 


John  Dowling,  et  al.  ,  ads.  John  Hodge. 

Where  proceedings  were  instituted  in  the  Court  of  Ordinary,  for  partition  and  sale 
of  real  estate,  and  the  citation  or  summons  issued  by  the  Ordinary,  with  the 
probate  of  service  and  return,  never  has  been  recorded  or  returned  to  th&. 
Ordinary's  office,  parol  evidence  is  admissible  to  prove  its  existence,  &c.,  in  an 
action  of  trespass  quare  claitsum  frcgit. 

Before  Richardson,  J.,  at  Gillisonville,  Fall  Term,  1841. 

_  The  subjoined  report  of  his  Honor,  with  the  grounds  of  appeal,  fur- 
nishes the  history  of  this  case  and  the  points  in  issue  between  the  parties. 

This  was  an  action  of  trespass  to  try  title  to  a  tract  of  land,  marked 
C,  on  the  jilat  adduced. 

The  plaintiff  showed  a  grant  to  Theophilus  Barnes,  October,  1793,  for 
four  hundred  acres,  who  was  in  possession  forty  *years.  In  1818,  r^o-\n 
he  divided  the  tract  into  four  parts,  "A.  B.  C.  and  D."     He  L  -^" 


484  CHARLESTON",  FEBRUARY,  1842.      VOL.  II.  [*210 

crave  A.  B.  and  D.  to  his  children,  and  retained  C.  After  the  death  of 
Tlicophilus  Barnes,  proceeding-s  were  had  before  the  Ordinary  ;  the  land 
(O'w^as  sold  and  purchased  l>y  John  Hodges,  the  plaintiff ;  sheriff's 
title  to  hira  3d  August,  l!<39.  The  tract  C,  was  located  and  the  tres- 
jiass  proved. 

The  defendant's  counsel  made  objections  to  the  regularity  of  the  pro- 
ceedings before  the  Ordinary  ;  which  were  all  overruled. 

The  defendant  also  set  up  title  by  possession,  and  proved  a  very  long 
possession.  But  I  considered  it  plainly  permissive  and  not  adverse  to 
the  plaintiff's  title.  ,  And  accordingly  I  charged  the  jury  that  the  title  of 
the  plaintiff  was  plain  and  legal  ;  that  none  of  the  supposed  irregulari- 
ties in  the  proceedings  before  the  Ordinary,  could  invalidate  the  sale 
nuide  by  the  sheriff  to  hira. 

That  the  long  possession  proved  by  the  defendant,  appeared  to  me  to 
have  been  by  the  permission  of  the  grantee  ;  and  if  so,  it  could  not  give 
the  defendant  title  by  possession.  But  the  jury  were  the  final  judges, 
whether  such  possession  had  been  permissive  or  adverse. 

The  jury  found  for  the  plaintiff,  and  the  defendant  appeals  on  the  fif- 
teen grounds  annexed. 

These  grounds  require  a  narration  of  nearly  the  entire  evidence,  as 
noted  from  the  proceedings  before  the  Ordinary,  and  also  of  the  manner 
of  the  defendant's  possession  of  the  land.     The  evidence  is  as  follows  : 

Evidence. 

1st.  Grant  to  Theophilns  Barnes  for  four  hundred  acres,  October,  1793. 

2(1.  Thomas  Hanker.  Grantee  was  in  possession  thirty  or  forty  years.  In  181S 
he  had  tlie  huid  divided  into  four  parts,  A.,  B.,  C,  and  D. — C.  he  retained,  and 
gave  the  rest  to  his  children. 

3d.  Proceedings  in  the  Court  of  Ordinary  to  divide,  &c. 

First,  citation  (but  service  does  not  appear.)  Second,  order  to  sell,  April,  1S38. 
(These  arc  from  the  Ordinary's  record  book  :  originals  not  produced.) 

4th.     Title  of  sheriff  to  John  Hodge,  3d  August,  1839. 
*2m       *  ''•  ^^'  J^^9^^'^^^'     Saw  the  citation,  and  witness  took  the  oath  of  W. 
'  Mulligan  that  he  served  the  citation  on  John  Dowling  and  wife. 

R.  G.  Norton,  Ordinary,  lias  searched  and  cannot  find  the  original  citation  or 
summons  ;  he  finds  the  petition. 

Tlios.  Afankur.  Has  seen  the  original  citation  in  hands  of  Mulligan,  and  his 
affidavit  of  service.  (The  competency  of  this  evidence  and  Hogarth's,  objected 
to.)  Grantee  sold  A. — B.  was  given  to  a  son,  and  D.  to  James  Dowling,  son  of 
defendant ;  B.  was  the  eastern,  and  D.  the  western  boundary  of  C. 

Cross-rxamincd.  Witness  was  present  when  the  Ordinary  gave  the  order  of  sale 
to  the  .shuriir,  and  Dowling  objected. 

Dowling  had  part  of  the  land  in  cultivation,  and  had  permission  to  cultivate  it. 
Dowling  had  it  in  cultivation  for  fifteen,  certainly  ten  years. 

ir.  J/.  J/>,ijartli.  Knows  the  land,  &c.,  has  seen  James,  John,  and  Madison 
Dowling  at  w<irk  on  it.  llodge  forbid  their  working  on  it ;  said  if  Hodge  bothered 
liiui  h(!  would  .split  his  head  with  his  axe. 

Defence — Possession. 

./«/,;!  liarnrs.  Joliu  Dowling  lias  lived  where  he  does  now  twenty-five  or  twenty- 
six  years  ;  he  lias  claimed  C.  by  permission  of  grantee  up  to  this  time.  Grantee 
told  In)wling  to  cut  timber,  clear  it,  and  keep  it  till  he  called  for  it. 

('roHS-ezamiiiid.  Dcl'endant  lived  on  James  Dowling's  part,  and  cultivated  C, 
tlireo  or  four  acres;  C.  belonged  to  Banies,  the  grantee;  it  was  called  his,  and 
defendant  had  iiermission  to  keep  it  till  he  called  for  it. 

Olive  liarnrs,  daughter  of  grantee.     Defendant  did  not  claim  C.  as  his  own,  but 


'211] 


DOWLING   ET  AL.    (ids.   HODGE.  485 


had  permission  of  her  father  to  cut  and  use  it.     It  always  passed  for  his  ;   her 
father  lived  on  the  land  -where  Hogarth  lives. 

Note. — Defendant,  John  Dowling,  married  grantee's  daughter;  James  and 
Madison  Dowliiig  are  grantee's  grand-cliildren. 

GROUNDS    OF    APPEAL. 

1st.  Because  his  Tlonor  permitted  the  plaintiff  to  introduce  *in  evidence  r*2]^2 
proceedings  in  partition  before  the  Ordinary,  without  a  sunnuous  regu-  L 
larly  returned  as  served. 

2d.  Because  his  Honor  ruled  that  these  proceedings  were  a  good  record, 
wlien  the  foundation,  namely,  the  "summons"  or  "citation,"  was  wanting. 

3d.  Because  it  being  proved  the  original  papers  were  not  to  be  found  in  the 
Ordinary's  office,  his  Honor  i)erniitted  the  plaintiff  to  go  into  secondary  evidence, 
without  his  having  proved  their  loss  or  destruction. 

4th.  Because  the  next  highest  evidence  to  the  orignals,  is  the  Ordinary's 
record  book,  and  the  Court  should  have  admitted  no  evidence  beyond  it. 

5th.  Because  the  Court  permitted  the  plaintiff  to  go  into  parol  testimony  of 
the  existence  and  service  of  the  summons  or  citation. 

6th  Because  his  Honor  permitted  the  plaintiff  to  prove  by  a  witness,  that  he 
had  heard  the  man  who  served  the  summons  say  he  served  it,  when  there  was 
no  evidence  that  the  person  serving  it  was  out  of  the  reach  of  the  process  of 
»uhp(ena. 

7th.  Because  his  Honor  ruled  that  the  Ordinary's  proceedings  was  collateral, 
whereas  they  constitute  a  distinct  link  in  the  plaintiff's  chain  of  title. 

8th.  Because  his  Honor  charged  that  tiie  judgment  of  the  Court  of  Ordinary 
could  not  be  controverted. 

9th.  Because  his  Honor  charged  that  the  proceedings  appeared  to  be  regular, 
and  the  defendant  was  bound  to  show  they  were  irregular ;  whereas  they  were 
irregular  on  their  face. 

lUth.  Because  it  was  proved  that  the  defendant  objected  to  the  sale  and 
proceeding-sin  partition  before  the  Ordinary,  and  the  Ordinary  recites  that  "  no 
objection  was  made,"  which  in  itself  proves  an  irregularity. 

11th.  Because  his  Honor  charged  the  jury  that  this  case  differed  from  Sum- 
ner and  Murphj',  (2  Hill  498) — so  as  not  to  be  governed  by  it. 

r2th.  Because  the  defendant  made  out  a  clear  case  of  statutory  possession, 
whereas  his  Honor  charged  tlie  jury  that  he  had  failed  to  do  so. 

13th.  Because  it  was  proved  that  tlie  defendant,  John  Dovvling,  went  into  pos- 
session under  these  words  from  his  *father-in-law  :  "  take  the  land,  use  it  r*.)io 
and  clear  it,  plant  it,  and  keep  it  until  I  call  for  it."  That  he  never  L 
called  for  it,  and  died  without  doing  so.  That  twenty-two  years  elapsed 
between  John  Bowling's  going  into  possession  on  this  permission,  and  the 
bringing  of  this  suit,  -which  established  a  presumption  of  a  gift 

I4th.  Because  as  against  James  T.  Dovvling  and  Madison  Dowling,  this  was 

strictly  an  action  trespass  qnare  clausum  Jreyif,  and  it  was  absolutely  necessary 

to  prove  entry  and  possession  to  maintuiu  an  action  ;  and  the  plaintiffs  failed 

so  to  do. 

loth.  Because  the  verdict  was,  in  other  respects,  contrary  to  law  and  evidence. 

W.  F.  Htitson,  for  the  motion.  The  proceedings  before  the  Ordinary  are  a 
distinct  link  in  plaintiff's  title.  The  citation  not  being  produced,  it  is  not  a 
record.  MiPer  vs.  xllexaitdr,  1  Ilill  Ch.,  27 ;  Ordinary  vs.  Condi/,  2  Hill,  313. 
The  sentence  or  decree  of  the  spiritual  Court  is  not  conclusive ;  all  the  proceedings 
must  be  produced.  1  Esp.,  5;  Duchess  of  Kingston's  case,  1  Leach's  C.  C,  14f! ; 
1  East.  P.  C,  4ii8.  The  citation  being  absent,  no  secondary  evidence  could  be 
adduced,  unless  its  actual  loss  or  destruction  was  proved. 

The  ne.\t  highest  evidence  was  the  Ordinary's  record  book  ;  and  as  that  did  not 
show  service  of  the  citation,  notliing  beyond  could  be  admitted. 

If  the  Ordinary's  book  liad  been  destroyed,  the  next  highest  evidence  was  the 
person  who  served  the  citation.     Yet  the  Judge  permitted  the  magistrate  who 


486  CHARLESTON,  FEBRUARY,  1842.      VOL.  IT.  [*213 

swore  him  to  the  service,  to  testify  that  he  had  done  so.  This  was,  however,  a 
clear  case  for  the  Court  to  presume  a  grant  or  title  from  Barnes  to  defendant.  See 
Sumner  and  Murphy,  2  Hill,  488,  and  the  circumstances  of  this  case,  as  presented 
in  the  report.  No  entry  and  possession  was  proved  in  plaintiff;  and  this  is 
necessary  to  support  T.  Q.  C.  F.     3  McC,  422;   1  Bail.,  306  ;  2  Hill,  466. 

W.  E.  Martin,  contra.  The  decision  of  the  Ordinary,  and  the  regularity  of  the 
proceedings  on  which  it  is  based,  cannot  be  inquired  into  in  this  collateral  manner. 
*9ljn  McMullan,*  85  ;  1  Bailey,  25.  If,  however,  the  want  of  service  was  an 
"^  -'  objection  to  the  strength  of  plaiutilFs  title,  that  service  was  fully  proved  by 
the  magistrate,  before  whom  service  of  the  summons  was  sworn  to,  viz.  :  William 
Hogarth. 

Curia,  per  Richardson,  J.  The  mere  facts  of  the  case  have  been 
well  disposed  of  by  the  verdict.  The  plaintiff  bad  unquestionable  titles 
from  the  grantee  down  to  himself,  to  justify  the  finding  The  objections 
are  to  the  introduction  of  the  Ordinary's  record  book  to  justify  the  order 
for  the  sale  of  the  grantee's  land,  which  the  plaintiff  purchased  from  the 
sheriff.  The  only  original  paper  wanting,  was  the  Ordinary's  citation, 
and  the  return  of  the  service,  so  as  to  bring  the  case  legally  before  the 
Ordinary  for  judgment  in  partition.  All  the  original  proceedings  after 
citation,  were  recorded  in  the  record  book. 

To  justify  the  evidence  of  the  citation,  as  set  out  in  the  record  book, 
the  Ordinary  swore  he  had  searched  for  and  could  not  find  the  original 
citation,  but  found  the  petition  for  the  partition  of  the  land.  But  the 
service  or  return  of  the  citation  was  not  set  forth  in  the  Ordinary's  record 
book.  To  supply  this,  as  the  citation  and  return  on  it  were  not  to  be 
found,  Hogarth  was  allowed  to  prove  that  he  had  seen  the  citation  in  the 
hands  of  Wm.  Mulligan,  and  that  he  made  probate  of  the  service  before 
the  witness ;  not  that  he  had  merely  heard  Mulligan  say  so.  Thomas 
Maiiker  swore  he  had  also  seen  the  citation  in  the  hands  of  Mulligan, 
with  his  affidavit  in  the  probate  annexed  ;  not  that  he  had  merely  heard  him 
say  he  had  served  it :  and  also,  that  John  Dowling  was  present  when  the 
Ordinary  gave  the  order  of  sale  to  the  sheriff;  and  when  Dowling  objected, 
but  not  for  want  of  citation  ;  he  claimed  the  land.  Upon  this  secondary 
evidence,  the  Court  held  both  the  citation  and  the  service  legally  proved ; 
and  that  the  Ordinary's  record  book  proved  the  subsequent  proceedings 
before  him  ;  the  book  being  itself  the  original  record  of  such  proceedings. 

This  cannot  be  questioned.  It  is  equally  clear  that  the  citation  and 
probate  of  service  having  been  lost,  the  evidence  that  they  once  existed, 
was  very  competent  to  supply  the  loss.  The  Court  can  lay  down  no 
*215l  '"M'Ci'iitive*  rule  for  the  introduction  of  such  secondary  evidence. 
■^  All  secondary  evidence  is  of  itself  a  de])arture  from  the  strict  rules, 
from  necessity,  and  must  depend  upon  the  infinite  variety  in  the  position 
of  cases,  where  the  best  evidence  has  been  lost.  But  the  suppletory  proof 
of  this  case  is  full  and  satisfactory. 

The  motion  is,  therefore,  dismissed. 

Evans  and  Butler,  JJ.,  concurred. 


^215] 


AVANT    VS.    ROBERTSON".  487 


Penelope  Avant  vs.  J.  II.  Robertson. 


1.  Widow's  claim  of  dower  extends  to  all  the  lands  of  which  her  hushand  was 
seized  during  coverture ;  and  the  alienation  of  the  husband,  during  liis  life,  is 
an  immaterial  circumstance,  as  to  her  right  of  dower.  The  very  definition  of 
dower,  of  course,  embraces  the  whole  right,  whether  in  lands  aliened,  or  in 
those  of  which  the  husband  died  possessed. 

2.  The  acceptance  of  the  provisions  under  the  statute,  by  a  widow,  is  a  legal  bar 
to  her  rights  of  dower  ;  and  such  acceptance  may  be  pleaded  at  law,  as  a  defence 
to  the  demand  of  dower. 

3.  Where  a  widow  is  found  purchasing  part  of  the  real  estate  of  her  deceased 
husband,  joining  with  the  other  heirs  at  law  in  the  title  deeds  for  other  portions 
of  the  land,  and  receiving  part  of  the  money  for  which  the  land  was  sold,  these 
are  such  circumstances  as  go  to  show  her  election  and  acceptance  of  the  statu- 
tory provision  of  dower ;  and  where  the  question  of  election  has  been  fairly 
submitted  (under  the  circumstances)  to  the  jury,  and  they  have  decided,  the 
Court  will  not  disturb  their  finding. 

Before  Earle,  J.,  at  Ilorry,  Fall  Term,  1841. 

This  was  an  action  by  the  demandant  to  recover  dower  in  the  lands  of 
luT  deceased  hnsband.  Plea,  that  the  demandant  had  joined  the  other 
heirs  at  law  of  her  husband,  in  making  partition  of  the  estate,  and  had 
elected  to  receive  her  distributive  share  thereof,  under  the  statute  of  dis- 
tributions;  to  which  there  was  a  general  demurrer,  and  *joinder  r:^216 
in  demurrer.  After  argument,  the  demurrer  was  overruled,  and  L 
the  plea  held  good.  The  plaintiff  then  put  in  a  replication,  denying  the 
fact  stated  in  the  plea,  upon  which  issue  was  joined,  and  the  case  went  to 
the  jury  on  the  following  proof. 

The  lands  of  the  estate  were  advertised  by  Henry  Avant,  as  the  agent 
of  the  heirs  at  law,  to  be  sold  at  auction,  for  distvilnition  among  them  : 
and  were  sold.  The  heirs  were  all  of  age.  The  defendant  bought  one 
tract  of  two  hundred  and  seventy-eight  acres,  and  produced  a  deed,  in 
which  the  plaintiff  and  other  heirs  joined,  in  consideration  of  three  hun- 
dred dollars  paid.  Mr.  I5eaty,  who  drew  the  deed,  was  likewise  i)resent 
at  its  execution,  and  the  money  was  directed  (the  plaintiff  being  present) 
to  be  paid  to  Henry  Avant,  the  agent  for  them.  Another  tract  adver- 
tised and  sold  in  the  same  way,  was  purchased  by  James  Lambert,  for 
nine  hundred  and  si.\ty-one  dollars.  He  paid  the  money  to  the  heirs 
collectively,  (the  plaintiff  being  present)  and  procured  their  joint  deed  of 
conveyance.  These  two  tracts  composed  the  bulk  of  the  estate ;  another 
tract,  whereon  the  plaintiff  lives,  was  purchased  by  herself;  and  of  the 
proceeds  of  the  sale  to  Lambert,  the  plaintiff  did  receive  her  proportion. 
There  was  some  inconsiderable  personal  estate,  which  did  not  ajtpear  to 
have  been  accounted  for  by  the  administrator,  or  to  have  been  distributed. 
Verdict  for  the  defendant,  which  the  plaintiff  moved  to  set  aside. 

GROUNDS   OF   APPEAL. 

Because  the  receipt  and  acceptance  of  a  distributive  share,  under  the  Act  of 
1791.  does  not  bar  the  claim  of  dower  to  laud  iu  possession  of  and  aliened  by 
the  husband,  during  coverture. 

And  for  a  new  trial,  on  the  following  grounds,  viz  : 

1.  Because  there  was  no  evidence  that  the  personal  estate  of  demandant's 
husl)and  had  ever  been  distritiuted,  or  that  she  received  any  part  of  the  same, 
or  a  sum  of  money  in  lieu  thereof. 


4S8  CHARLESTON,  FEBRUARY,  1842.      VOL.  II.  [*216 

2.  Because  there  was  no  proof  of  an  acceptance  under  the  Act  of  1791,  by 
the  demandant,  or  that  she  ever  made  her  election  according  to  the  said  Act. 
And  if  tlie  defence  can  avail  the  defendant  at  all,  he  should  have  ijroved  that 
^n.^l  *the  demandant  received  her  full  distributive  share  under  the   Act, 

-'  or  had  accepted  a  smaller  sum.  in  lieu  of  said  share. 

3.  Because  the  fact  of  demandant's  joining  in  the  conveyance  of  lands  of  the 
intestate,  is  not  evidence  of  such  an  election,  under  the  Act,  as  will  bar  her 
claim  of  dower. 

Curia,  per  Wa-r-dlaw,  J.  The  statute  of  distributions  passed  1191, (a) 
provides  "  that  iu  all  eases  where  provision  is  made  by  this  Act,  for  the 
widow  of  the  person  dying  intestate,  the  same  shall,  if  accepted,  be  con- 
sidered as  in  lieu  of  and  in  bar  of  dower."  And  the  questions  here 
presented  for  the  consideration  of  the  Court  are, 

1.  Does  this  statutory  bar  of  dower  extend  to  all  the  lands  whereof 
the  widow  might  have  claimed  dower,  whether  aliened  by  the  husband, 
during  coverture  or  not,  or  is  it  confined  to  those  lands  whereof  the 
husband  died  seized,  and  of  which,  by  the  statute,  the  widow  may  take  a 
share,  as  one  of  the  heirs  ? 

2.  Is  the  acceptance  of  the  provision  under  the  statute,  a  bar  of  dower 
at  law,  or  only  in  equity  ? 

3.  Is  distinct  manifestation  of  election  made  equivalent  to  acceptance  ? 

1.  The  very  definition  of  dower  shows  that  the  wife  entitled  to  it  shall 
have  the  third  part  of  all  the  lands  and  tenements  whereof  the  husband 
was  seized  at  any  time  during  the  coverture,  to  hold  to  herself  for  the 
term  of  her  natural  life.  The  alienation  of  the  husband  is  an  immaterial 
circumstance,  as  to  the  right  of  dower,  and  a  general  mention  of  dower, 
of  course,  embraces  the  whole  right,  whether  in  lauds  aliened,  or  in  those 
of  which  the  husband  continued  seized.  The  fourth  essential  requisite  of 
a  jointure,  laid  down  by  Lord  Coke,  (Co.  Lit.,  36  b,)  is,  "it  must  be 
made  in  satisfaction  of  her  whole  dower,  and  not  of  part  of  her  dower," 
which,  he  says,  "is  so  plain,  it  needeth  not  any  example."  Therefore,  a 
conveyance,  in  j^art  of  jointure,  was  declared  no  bar  to  dower,  from  the 
uncertainty  of  its  expression,  and  the  impracticability  of  its  application, 
(4  Rep.,  3 ;)  but  the  expression,  "in  lieu  and  bar  of  dower,"  has  always 
been  held  to  satisfy  the  requisite,  and  is  the  usual  and  approved  expression 
*2181  '"  ^^'  .jointures.     *That  the  Legislature  intended  that  the  widow 

-'  should  be  barred  of  dower  in  all  lands  whereof  she  might  have 
been  endowed,  may  be  inferred,  not  only  from  tlie  general  and  unqualified 
expression,  "in  lieu  of  and  in  bar  of  dower,"  Init  from  consideration  of 
the  inconvenience  and  irregularity  which  would  result,  if  the  widow,  after 
taking,  as  heir  and  distributee,  a  share  of  the  wlujle  estate,  real  and 
persi^nal,  of  her  deceased  husband,  should  be  permitted,  by  claini  of 
dower  in  the  lands  alienated  by  the  husljand,  to  subject  the  heirs,  herself 
in  the  number,  to  the  possible  consequences  of  an  action  on  the  husband's 
warranty,  fur  redress  of  the  injury  done  by  her  claim  to  the  alienee. (6) 
The  Court  is  of  opinion,  that  the  statute  plainly  meant  to  create  an 
election  to  be  made  l)y  the  widow,  between  her  dower  at  common  law, 
and  the  jtrovision  made  for  her  by  the  statute. 

2.  The  .statutory  bar  in  question,  is  at  least  as  strong  as  any  that  could 

(n)  5  Stat.  102. 

(6)   Braxton  vs.  Freeman,  G  Rich.  3(j.     10  Rich.  158. 


^218] 


AVANT    VS.    ROBERTSON.  489 


be  created  by  a  devise  expressed  to  be  in  lieu  and  bar  of  dower ;  and  the 
acceptance  of  such  devise  may  be  pleaded  at  law  as  a  defence  to  the 
dematul  of  dower.  Chancellor  Harper,  in  the  case  of  McDowall  vs. 
lllack,  1  Bailey's  Eq.,  321,  says,  "the  rule  seems  to  be,  as  laid  down  by 
Mr.  Hargrove  in  his  note  to  Co.  Lit.,  3G  b,  note  6,  that  where  a  devise  is 
expressly  in  bar  or  satisfaction  of  dower,  that  is  a  defence  at  law ;  but 
that  a  Court  of  equity  will  sometimes  raise  a  case  of  election  from  the 
special  circumstances,  when  the  will  is  silent"  In  the  case  of  Kennedy 
vs.  J/i7/s',  13  Wendell,  553,  which  only  makes  more  plain  what  had  been 
before  decided  in  Xew  York,  (1  Johns.  Rep.,  307;  10  John.,  30  ;  T 
Cowen,  287,)  the  widow's  election  to  receive  a  testamentary  i)rovision, 
given  in  lieu  of  dower,  was,  at  law,  held  to  bar  her  dower,  AH  the  cases 
refer  to  what  was  said  by  Lord  Iledesdale,  in  Burmingham  vs.  Kirivan, 
2  Sch.  k  Lef.,  451,  and  rest  finally  upon  decisions  in  2  Leon.,  272,  and 
Cro.  Eliz.,  128.  The  Court  of  law  cannot  compel  the  widow's  election, 
nor  would  it  interfere  with  the  indulgence  which  Courts  of  equity  extend 
to  her,  in  making  it ;  but  when  of  two  things,  between  which  there  is 
plainly  a  legal  necessity  for  her  to  choose,  her  choice  has  been  made  of 
one,  the  law  will  deny  her  claim  of  the  other,  (a) 

*3.  The  provision  made  by  the  statute,  seems  to  be  like  dower  r-^cf^a 
ad  Ofitium  eccJesice,  or  a  jointure  settled  after  marriage,  or  a  ^  "^ 
devise  expressly  in  lieu  of  dower,  in  this,  that  they  all  propqsed  for  the 
acceptance  of  the  widow,  something  which,  if  taken,  shall  be  in  bar  of 
dower  at  common  law.  When  shall  the  provisions  be  said  to  be 
'•  accepted  ?"  It  has  been  contended  here,  that  it  is  not  accepted  until 
it  has  been  fully  paid  ;  that  no  collateral  satisfaction  will  bar  before  pay- 
ment. It  is  true,  that  it  is  not  the  offer,  but  the  render  of  satisfaction 
which  bars.  Yet,  if  a  yearly  provision  for  the  life  of  a  widow,  be  be- 
queathed in  lieu  of  dower,  shall  there  be  no  bar  by  acceptance  whilst 
she  lives  ?  If  one  of  two  things  is  to  be  enjoyed,  any  unequivocal  act 
done,  with  full  knowledge  of  facts  and  legal  rights,  with  a  view  to 
election,  determines  the  clioice  ;  and  whilst  it  establishes  the  title  to  the 
one  thing,  bars  the  claim  of  the  other.  The  thing  chosen  is  then 
accepted  The  widow  who  enters  upon  the  lands  of  her  post-nuptial 
jointure  waives  her  right  of  dower;  and  in  the  case  before  us,  we  lind 
the  wid-ow  buying  land,  selling  land,  making  conveyances,  and  receiving 
money — all  acts  which,  under  the  circumstances,  plainly  indicate  her 
acceptance  of  the  statutory  provision,  but  are  irrcconcileable  with  the 
claim  of  dower.  Whether  the  statutory  provision  had  been  accepted, 
under  circumstances  manifesting  election,  was  a  question  which  the  jury 
Lave  decided,  and  this  Court  is  satisfied  with  the  decision. 

Motion  dismissed. 

Richardson,  O'Xeall,  Evans,  and  Butler,  JJ.,  concurred. 

Mr.  HitrUee,  for  the  motion.     3[r.  ,  contra. 

(a)  See  Evans  vs.  Pierson,  9  Ricli.  12.     An. 


490  CHARLESTON,  FEBRUARY,  1842.      VOL.  II.  [*220 


*220]  *WiLLiAM  Neve  vs.  The  Columbia  Insurance  Company. 

Where  a  party  obtained  from  two  different  Insurance  Companies,  a  policy  of 
insurance,  for  the  same  stock  of  goods;  and  by  one  policy,  (to  wit,)  the  one 
obtained  from  the  defendants,  it  was  expressly  stipulated,  "that  in  case  the 
buildings  or  goods  herein  mentioned,  have  been  already,  or  shall  be  hereafter 
insured  by  any  policy  issued  from  this  office,  or  by  any  agent  for  this  office,  or 
by  any  other  Insurance  Company,  or  by  any  private  insurers,  such  other 
insurance  must  be  made  known  to  this  of&ce,  and  mentioned  in  or  endorsed  on 
this  policy,  othenvise,  this  policy  to  be  void."  Held,  first,  that  the  question, 
of  whether  the  stock  of  goods  described  in  this  policy  was  the  same  as  those 
described  and  covered  by  the  policy  in  the  Charleston  Insurance  Company,  was 
a  question  properly  for  the  jury,  and  their  finding  will  not  be  disturbed. 

Secondly,  It  was  held,  that  the  policy  of  Insurance,  obtained  from  the  defendants, 
was  void,  by  the  terms  of  the  policy.  It  having  been  obtained  by  fraud  and 
misrepresentation. 

Tried  before  bis  Honor  Judge  Butler,  January  Term,  1842,  at  Charles- 
ton, whose  reports  of  the  facts  are  as  follows  : 

This  was  an  action  upon  a  policy  of  insurance  for  $2,000,  effected  by 
the  plaintitf,  at  the  office  of  Mr.  Alexander  Robhison,  agent  for  the 
defendants,  on  the  1st  January,  1840,  on  "a  stock  of  Groceries,  Liquors 
and  Wines,  &c.,  contained  in  the  two  story  wooden  building,"  &c.  The 
premises  were  destroyed  by  fire,  on  the  night  of  27th  April,  1840,  and 
the  next  day  the  claim  of  the  plaintiff  was  made,  in  which  his  whole  loss 
was  set  down  as  $G,500,  upon  his  stock  in  the  store.  In  the  policy  of 
insurance  is  contained  a  special  clause,  guarding  against  a  double  policy  ; 
and  the  defendants  objected  to  the  plaintiff's  recovery,  upon  the  ground 
that  this  clause  had  been  violated  ;  and  secondly,  upon  the  ground,  that 
the  ])laintiff  had  fired  his  own  premises.  It  was  admitted  in  the  ])rogress 
of  the  trial,  that  the  second  ground  could  not  be  maintained,  so  that  the 
case  turned  entirely  upon  the  first  ground. 

It  was  j)roved,  that  in  May,  1839,  one  Kohnke  was  the  proprietor  of 
of  the  stock  of  groceries,  &c.,  in  the  same  store,  and  that  he  sold  them  to 
Neve,  the  i)hiintiff,  upon  an  agreement  that  Neve  should  pay  him  $1200 
in  cash,  should  confess  judgment  for  the  balance,  and  take  out  a  policy 
of  insurance,  and  assign  the  same  to  Kohnke.  Neve  therefore  made  an 
offer  for  insurance,  at  the  Charleston  Insurance  and  Trust  Com|)any,  for 
♦2211  '^^''^^^  "P*^"  ^^^^  stock,  *valued  at  $3,000,  and  upon  the  oft'er 
-^  made  a  written  entry  that  the  policy  was  to  be  assigned  to 
Kohnke.  The  policy  was  effected  accordingly,  and  on  the  face  of  it  was 
written  by  the  agent  of  the  Company,  "  this  policy  may  be  assured  to 
C.  F.  Kohnke."  Mr.  Moise  acted  as  the  attorney  of  Kohnke,  took  the 
confession  of  judgment  for  him,  and  the  policy  of  insurance  was  delivered 
to  Kolud<e's  agent,  and  never,  at  any  time  had  been  in  Neve's  possession, 
or  was  claimed  Ijy  him.  It  was  considered  as  assigned  to  Kohnke,  and 
when  produced  at  the  trial,  had  an  assignment  endorsed  thereon,  written 
however,  since  the  action  was  commenced.  After  the  fire,  Kohnke's 
agent,  Mr.  Moise,  made  a  claim  for  payment  of  this  policy,  which  was 
refused,  upon  the  grounds  stated  in  my  report  of  that  case. 

Mr.  Robinson,  the  agent  of  the  Columbia  Insurance  Company,  proved 
that  Neve  applied  to  him  to  effect  insurance  on  tlie  stock  in  November, 


^221] 


NEYE  VS.   COLUMBIA  INSURANCE  CO.        491 


1839,  that  they  could  not  agree  as  to  the  rate  of  premium,  and  separated. 
In  January,  1840,  Xeve  again  applied,  and  Roljinson  asked  if  he  had 
stood  his  own  insurer  since  they  had  before  conversed.  It  appeared, 
that  in  the  offer  made  in  writing  to  Robinson,  and  which  was  in  Robin- 
son's handwriting,  that  the  stock  was  originally  set  down  as  worth 
$6,000,  which  sum  was,  however,  struck  out,  and  without  filling  up  again 
that  column,  $3,000  was  set  down  in  the  next  column,  as  the  amount  to 
be  assured,  and  §2,000  in  the  column  in  which  was  placed  the  amount 
actually  insured.  Mr.  Robinson  stated,  that  he  went  round  himself  to 
inspect  the  stock,  and  considered  it  worth  about  $3,0(i0  ;  that  he  returned 
to  liis  office,  and  that  he  rememl)ers  having  asked  Neve,  whether  he  had 
any  other  insurance  upon  the  property  ;  to  which  Neve  answered  in  the 
negative. 

On  the  other  hand,  a  witness  for  the  plaintiff,  (Mr.  Rose)  swore  that 
he  was  present  at  the  time,  having  gone  with  Neve  at  his  request,  and 
that  Neve  told  Robinson  of  the  insurance  made  fur  Kohnke's  benefit,  at 
the  Charleston  Insurance  and  Trust  Company.  This  evidence  is  in 
writing,  and  cannot  be  referred  to. 

There  was  a  contrariety  of  evidence,  also  as  to  the  value  of  the  stock. 
Mr.  Neufville,  who  dealt  at  Neve's  store,  *thought  his  stock  r^c^o.j 
worth  $4,000.  Mr.  Estill  proved,  that  hearing  that  Neve  wished  ^ 
to  sell,  he  brought  him  a  purchaser  who  wished  to  buy,  and  both  parties 
being  desirous  of  trading,  he  presumes  that  Neve  fairly  valued  his  stock, 
and  that  he  asked  for  it  $4,500.  It  was  also  proved  by  the  production 
of  various  bills  of  parcels,  that  Neve  had  purchased  from  January  to 
April,  articles  costing  about  $2,200,  exclusive  of  the  original  stock. 
The  assessment  too  of  the  tax  collector  was  produced,  assessing  the  stock 
as  worth  $4,000. 

On  the  part  of  the  defendants  was  produced  Neve's  claim,  swearing 
the  stock  to  be  worth  §(5,500,  and  the  evidence  of  several  witnesses,  who 
merely  testified  in  general  as  to  the  value  of  stocks,  without  seeming  to 
know  anything  of  this  particular  stock. 

I  charged  the  jury  on  the  different  questions  made  in  the  argument,  as 
follows  :  The  main  questions  upon  which  the  case  turned,  were  these  : 
did  Neve  procure  a  double  policy  to  be  effected  on  the  same  stock  of 
goods  ?  And  second,  was  the  last  (the  one  on  which  the  action  is 
brought)  obtained  by  misrepresentation  and  fraud  ?  Whether  the  policy 
under-written  by  Rubinson  was  void  or  not,  dejjended  altogether  on  the 
character  of  the  one  effected  in  the  Charleston  office,  and  the  legal  rights 
of  the  ])arties  under  it.  It  purports  to  be  an  assurance  on  goods  to 
which  Neve  had  exclusively  a  legal  title  ;  Kohnke  had  no  legal  interest 
there  at  all,  nor  any  special  lien.  His  lien,  by  confession  of  judgment, 
was  general  and  even  contingent,  and  I  thought  this  was  not  an  insurable 
interest,  and  was  not  embraced  at  all  in  the  policy.  Indeed,  I  thought 
Kohnke  held  the  policy  as  collateral  security  only.  My  judgment 
on  this  point  underwent  some  change  in  the  argument  of  the  case  against 
the  Charleston  Company.  The  modification  of  my  judgment  will  be 
seen  by  reference  to  my  report  in  that  case.  This  does  not,  in  any  wise, 
however,  affect  the  result  of  ray  decision  on  the  case  under  consideration. 
For  although  Kohnke  may  have  had  some  interest,  it  was  limited  and 
special,  and  did  not  deprive  Neve   from  having  a  concurrent  interest 


492  CHARLESTON,  FEBRUARY,  1842.      VOL.  II.  [*222 

with  hira  iu  part,  and  an  exclusive  interest  as  to  the  other  part.  This 
will  be  apparent  from  this  view.  Suppose  no  other  policy  had 
*9.:)q-|  *hcen  effected,  but  the  one  in  the  Charleston  Company.  That 
"'  -^  would  have  been  good  against  the  Company  for  $2,000  ;  and  it 
would  have  been  good  for  the  benefit  of  Xeve,  enabling  hira  to  pay  a 
debt  of  81,000,  and  giving  him,  besides  for  his  own  use,  $1,000  more  ;  it 
would  have  been  worth  to  him  $2,000.  But  concede  that  Kohnke  had 
an  interest  by  assignment  in  the  policy  ;  and  he  could  not  have  it  witliout 
an  interest,  no  policy  ever  being  good,  without  some  interest  to  be  pro- 
tected ;  still  Neve  had  an  exclusive  interest  to  the  amount  of  $1,000. 
That  was  his  own  insurance  to  that  amount,  in  which  Kohnke  had  no 
concern.  Was  not  then  the  second  policy  a  double  insurance  on  the 
same  stock  of  goods  ?     I  think  it  was,  and  so  charged  the  jury. 

The  other  question  noticed  was  one  of  fact,  to  wit :  Was  this  second 
policy  procured  by  misrepresentation  and  fraud  ?  Mr.  Robinson  swore 
that  it  was,  and  gave  satisfactory  reasons  why  it  was  so  obtained.  The 
evidence  of  the  other  witness  (Rose,)  would  seem  to  conflict  with  Robin- 
son's statement.  If  notice  of  former  insurance  had  been  given  to  Robin- 
son, it  was  his  duty  to  have  noted  it  in  his  policy,  which  was  not  done ; 
and  I  am  inclined  to  think  that  the  omission  is  evidence  that  he  never 
received  such  notice.  Be  that  as  it  may,  it  was  a  question  that  was  sub- 
mitted to  the  jury. 

Another  question  was  made,  but  which  was  also  one  of  fact ;  that  the 
two  policies  were  on  different  stocks  of  goods.  The  stock  insured  is 
described  in  the  same  way  in  both  policies.  Though  some  things  were 
sold  and  others  bought,  they  had  reference  to  the  same  general  stock. 
The  contract  of  insurance  is  one  of  indemnity,  for  such  loss  as  the  assured 
may  suffer  by  the  destruction  of  goods  of  a  particular  description,  not  for 
the  loss  of  the  i)articular  cask  of  wine,  &c.,  which  might  be  in  the  store  at 
the  time ;  and  if  it  were  not  so,  the  assured  would  be  generally  the  suf- 
ferer, for  within  a  year  he  may  have  sold  the  specific  articles  that  were  in 
the  store  at  the  time  the  policy  was  taken. 

All  the  questions  of  fact  were  submitted  to  the  jury  under  my  views  of 
the  law,  as  above  stated.  The  most  important  issue  of  fact  was,  whether 
*2-^4l  ^^^^  ^^^^  "*-*^  ^^'^^  ^^^  *own  house;  upon  that  issue,  much  evidence 
was  given,  which  it  is  unnecessary  to  notice  here.  The  jury  found 
a  verdict  for  the  defendants,  and  the  plaintiff  appealed,  on  various  grounds ; 
all  of  which  are  resolved  into  the  question,  whether  the  same  stock  of 
goods  Iiavc  been  twice  assured  or  not. 

K'inhardt,  for  the  motion;  said,  if  Neve  had  a  separable  interest  in  the  goods 
a«'=urrd,  from  that  assured  by  the  Charleston  Insurance  Company,  this  policy 
may  bo  pood;  cited  1  .1.  Cas.  1.  Such  facts  as  may  increase  the  risk  or  pr<>miam 
must  be  coniiiiuuicated,  otherwise  not ;  17  Weud.  (331,  is  but  a  continuation  of 
tJie  c.'is.f  of  '.I  Wend.;  11)  Pick,  81.  He  had  tlie  riglit  to  insure  all,  althouf;h  a  part 
iiiay  be  assij,'ued  and  assured  elsewhere.  The  policy  to  the  Coluuibia  Company 
rov.-rs  a  greater  amount  of  goods,  18  Pick.  523.  The  assignee  might  recover  all, 
although  a  part  only  was  assured  for  his  benefit,  2  Marsh,  on  Ins.  (3.54.  If  the 
second  policy  wore  attached,  a  return  of  the  premium  ought  to  have  been  made. 

//.  A.  Dp  SausHure,  contra,  said,  the  action  is  upon  the  contract.  The  goods  are 
his  own,  and  insured  in  that  policy  alone.  It  declares  the  consequence  of  a  double 
assurance;  the;  policy  is  to  bo  void.  No  notice  of  such  assurance  makes  it  void. 
The  fact,  that  two  actions  have  been  brought  for  the  same  loss,  on  the  two  policies, 


'224] 


NEVE    VS.    COLUMBIA   INSURANCE   CO.  493 


shows  that  it  is  a  douhle  assurance.  The  plaintiff  had  the  legal  interest  in  the 
goods,  whan  they  were  assured.  He  had  an  interest  to  pay  his  judgment  to 
Kohnke  and  to  retain  the  balance.  By  the  verdict  of  the  jury,  he  is  concluded 
from  examining  now  the  second  ground  of  defence,  in  relation  to  misai)prehension 
and  fraud.  The  first  ground  is  irrelevant,  because  the  real  issue  was,  whether  the 
same  goods  were  twice  assured ;  the  second  and  third  are  also  irrelevant.  The 
Judge's  illustrative  remarks  are  no  grounds  for  a  new  trial. 

Memminger,  in  reply,  said,  what  is  a  double  assurance?  Cited  3  Kent  Com. 
280.  Two  insurances  on  the  same  risk  *and  same  intei-est,  4  Dall.  351 ;  r#925 
12  Mass.  214;  1  Marsh.  146,  152.  Kohnke  clearly  had  an  insurable  '-  " 
interest,  1  Camp.  401;  5  B.  &  P.  299;  1  lb.  315;  3  Kent,  371.  Was  the 
Charleston  insurance,  an  insurance  of  Kohnke?  6  Cranch,  274;  12  Mass.  80; 
Phill.  on  Ins.  41,  G4.  A  mortgagor  may  insure  a  ship  and  not  disclose  the 
mortgagee.  It  is  not  necessary  to  disclose  the  interest,  2  T.  R.  188 ;  2  Cains  13, 
note  ;  2  Wash.  152.  A  party  may  divide  his  interest  and  insure  as  he  can, 
Hughes,  91,  92.  A  broker  may  insure  in  his  own  name,  and  the  parties  may 
recover  according  to  their  respective  interests.  The  law  will  make  the  parties 
to  a  double  insurance,  contribute  rateably.  Neve  did  not  own  the  first  insurance, 
when  he  was  insured  the  second  time.  As  to  the  assignment,  cited  1  H.  B.  239  ; 
7  T.  R.  347 ;  contracts  by  specialty  and  by  parol,  1  N.  &  McC.  249  ;  bonds  may 
he  assigned  by  parol,  19  J.  R.  95  ;  choses  in  action  may  be  assigned  by  delivery. 

The  policy  cannot  be  assigned,  except  in  equity.  The  assignment  or  delivery 
operates  alike.  The  plaintilF  never  had  the  first  assurance.  Kohnke  never  could 
recover  beyond  his  particular  interest,  9  E.  702 ;  Phill.  on  Ins.  The  assignee 
after  acceptance,  may  bring  the  action  in  his  owia  name,  8  Mass.  Re^j.  517  ;  20 
Marsh.  800  ;  17  Wend.  (J31,  rules  that  after  assignment,  the  party  may  insure 
again,  without  notice  of  the  first.  The  risk  is  not  the  same.  There  is  a  limitation 
in  the  Charleston  policy,  not  in  the  Columbia.  The  conditions  are  construed 
strictly. 

Curia,  per  Butler,  J.  In  approacliing  the  questions  in  this  case, 
many  of  the  difficulties  have  been  removed  by  the  opinion  of  the  Court, 
in  the  case  of  Neve  for  Kohnke  vs.  The  Charleston.  Insurance  Com- 
pany.(a)  "Whether  the  stociv  of  goods  described  in  this  policy,  was  the 
same  as  that  described  and  covered  by  the  Charleston  policy,  was  a  ques- 
tion of  fact,  properly  submitted  to  the  jury,  and  so  far  from  our  being 
dissatisfied  with  their  finding,  we  think  there  was  sufficient  evidence  to 
have  warranted  it  At  the  time  the  goods  were  sold  to  Neve,  they  were 
estimated  to  be  worth  not  more  than  $2,200,  and  it  seems  probable,  at 
least,  that  at  that  time  he  had  no  means  of  his  own  to  increase  the  stock, 
and  the  profits  must  have  been  excessive  *if  by  them  he  subse-  r^j^Qop 
quently  increased  its  value  to  $4000  or  §6000.  He  himself  suf-  L  *''" 
fercd  his  stock  of  goods,  at  two  different  times,  to  be  valued  at  $3000,  by 
taking  a  policy  on  them,  at  each  time,  for  $2000.  This  question  of  fact 
being  settled  by  the  verdict,  we  must  assume  that  two  different  policies 
have  been  taken,  on  the  same  stock  of  goods.  And  the  main  question  in 
the  case  now  occurs,  was  the  policy  on  which  this  action  is  brought  a 
double  policy,  and  procured  to  be  made  without  notice  or  by  a  suppres- 
sion of  trutli,  in  relation  to  the  first?  Because  if  so,  it  is  void  by  the 
terras  of  the  policy  itself,  which  contains  this  explicit  clause:  "In  case 
the  buildings  or  goods  herein  mentioned,  have  been  already,  or  shall  be 
hereafter  insured  by  any  policy  issued  from  this  office,  or  by  any  agent  for 
this  office,  or  by  any  other  insurance  company,  or  by  any  private  insurer, 
such  other  insurance  must  be  made  known  to  this  office,  and  mentioned  in 

(a)  Inf.  237.     An. 


49-1  CHARLESTON,  FEBRUARY,  1842.      TOL.  II.  [*226 

or  endorsed  on  this  policy,  othericise,  this  2JoUcy  to  he  voicV^  The 
Charleston  policy  is  not  mentioned  in  or  endorsed  on  this  policy;  and  I 
think  the  evidence  was  entirely  satisfactory,  that  no  notice  at  all  of  the 
former  policy  was  given  to  the  underwriters  of  this;  otherwise,  why  was 
there  not  a  memorandum  of  it  ?  Stript  of  all  the  extraneous  circum- 
stances, the  question  resolves  itself  into  this  :  Was  Neve,  the  plaintiff, 
bound  to  give  notice  of  the  first  policy?  In  fair  dealing  and  good  faith, 
we  think  he  was.  If  he  had  parted  with  his  entire  right  in  the  first 
insurance,  by  an  equitable  assignment  to  Kohnke,  he  might  possibly  have 
felt  himself  at  liberty  to  take  this  policy  without  notice.  I  am,  however, 
very  far  from  sanctioning  such  an  idea.  He  had  the  exclusive  title  to  the 
goods  insured,  and  does  not  occupy  the  position  of  a  mortgager,  who  had 
assigned  to  his  mortgagee  a  policy  taken  to  secure  his  interest,  and  who 
might  have  been  at  liberty  to  take  out  another  policy  to  secure  his  own, 
to  wit :  an  equity  of  redemption.  Such  was  the  case  in  7th  and  Hth 
Wendell,  referred  to  in  another  opinion.  There  are  many  good  objec- 
tions to  the  judgments  on  this  point,  in  the  cases  referred  to,  but  I  am 
not  called  on  to  review  or  sanction  these  decisions.  They  may  well 
stand  on  their  peculiar  facts,  whilst  the  question  in  the  case  before  the 
^c)i)y,-\  Court  would  not  be  affected  by  them,  for  it  has  been  shown,  that  *at 

"^  -J  no  time  had  Neve  parted  with  his  entire  interest  in  the  Charleston 
policy.  He  placed  it  in  the  possession  of  his  judgment  creditor,  with  only 
an  equitable  and  limited  interest  in  it.  Independent  of  Kohnke's  lien  on 
the  papers,  Neve  still  could  have  collected  the  policy,  and  realized  from 
it  $]U00.  In  fact,  it  was  legally  his  policy,  and  honesty  required  that  he 
should  have  given  notice  of  its  existence,  before  he  procured  the  one  on 
which  this  action  is  brought.  In  addition  to  the  fact  of  his  giving  no 
notice,  as  required  by  the  policy,  he  suppressed  the  truth  in  relation  to 
the  former  one,  for  he  said  to  Mr.  Robinson,  that  there  was  no  other 
policy  on  the  stock  of  goods,  and  that  he  had  stood  his  own  underwriter. 
If  this  be  true,  (of  which  I  have  little  doubt,)  the  plaintiff  was  guilty  of  a 
flagitious  fraud,  which  in  fact,  made  his  policies  worth  more  than  his 
goods,  and  if  he  could  have  realized  the  sums  called  for  by  them,  it  was 
bis  interest  that  his  goods  should  have  been  destroyed,  as  they  were  about 
three  months  after  the  last  policy  was  taken,  and  about  twenty  days  before 
the  expiration  of  the  first.  Courts  should  sustain  insurance  companies 
in  discountenancing  double  policies,  as  they  weaken  the  inducement  of 
tiie  assured  to  take  care  of  their  property,  and  thereby  jeopard  the 
security  and  safety  of  whole  cities.  Prudence  as  well  as  justice,  induces 
us  to  sanctifju  the  verdict  of  the  jury,  which  has  condemned  the  bad  faith 
of  the  plaintiff.  Insurance  companies  run  risks,  which  is  the  source  of 
their  profits,  but  they  are  entitled  to  have  good  faith  observed  toward 
tliem. 

The  motion  is  refused. 

Evans  and  Wardlaw,  JJ.,  concurred. 

O'NiiAiJ,,  J.,  having  an  interest  in  the  Company,  gave  no  opinion. 


'228]  DERXY   acts.    FERGUSON    &    DANGERFIELD.  495 


*Jane  Dehay  ads.  Ferguson  &  Dangerfield.         [*228 

Where  an  action  is  l)rought  by  a  party,  on  a  hond  given  under  the  Trover  Act  of 
1S27,  "to  be  answerable  for  all  damages  wliich  the  defendant  may  sustain  by 
any  illegal  conduct,  in  commencing  and  conducting  the  said  action  of  trover," 
and  the  party  sueing  on  the  said  bond  recovers,  a  new  trial  was  ordered,  unless 
the  plaintiff  would  release  all  the  verdict  except  so  much  as  was  rendered  for 
the  taxed  costs  of  the  former  action.  Vide  Brown  vs.  Spann,  3  Hill,  324,  and 
note  thereto. 

Before  Earle,  J.,  at  Charleston,  May  Terra,  1841. 

Debt  on  bond  ;  pleas,  non  est  factum,  and  non  damnificatus.  One 
Rhamo  had  brought  an  action  of  trover  against  these  plaintiffs,  for 
fourteen  negroes,  valued  at  $10,000;  under  the  Act  of  1827,  he  made 
the  necessary  affidavits,  and  the  plaintiffs  were  required  to  give  bond. 
Rhame,  on  filing  his  declaration,  likewise  entered  into  bond,  with  the 
present  defendant  as  his  surety,  to  be  answerable,  according  to  the  pro- 
visions of  the  Act,  for  any  illegal  conduct  in  sueing  out  the  said  writ,  or 
instituting  the  said  action  of  trover.  On  the  trial,  there  was  a  verdict 
for  the  defendants  in  that  action,  (the  present  plaintiffs,)  and  they  had 
judgment  and  execution  for  their  costs,  with  a  return  of  nulla  bona, 
whereupon  they  brought  suit  upon  the  bond  given  by  Rhame  and  this 
defendant,  on  filing  the  declaration  in  trover.  The  plaintiffs  offered  no 
other  evidence  of  illegal  conduct  in  bringing  the  action,  than  the  affidavit 
setting  up  a  false  claim  to  negroes  not  his  own,  and  causing  the  plaintiffs 
to  give  bond  in  a  large  amount.  They  offered  the  record  with  the  ver- 
dict and  judgment  for  the  defendants,  and  claimed  for  damages  the 
counsel  fees  paid,  and  agreed  to  be  paid,  and  the  taxed  costs  of  the 
action.  The  presiding  Judge  thought  that  the  question  arose  only  on 
the  statute,  and  that  making  a  false  affidavit,  and  commencing  a  ground- 
less action,  as  was  manifested  here  by  the  verdict,  did  constitute  illegal 
conduct,  under  the  Act,  and  made  the  defendant  liable  in  this  action. 
The  jury  were  told  that  the  plaintiffs  were  entitled  to  recover  the  charges 
of  defending  themselves  from  the  false  claim  of  the  former  plaintiff  in 
trover,  and  that  part  of  a  counsel  fee  agreed  to  be  paid,  properly  con- 
stituted an  item  of  those  charges.  Tlie  jury  found  for  the  plaintiffs, 
accordingly. 

*GROUNDS   OF   APPEAL.  [*229 

1.  That  his  ITonor  erred  in  charging  that  the  verdict  for  the  defendants,  in 
the  original  action  of  trover,  was  sufBcient  proof  of  the  groundlessness  of  the 
action,  and  the  falsity  of  the  affidavit  made  to  snpport  it,  and  indeed  was  the 
test  of  the  "illegal  conduct,"  in  commencing  and  conducting  the  original  suit, 
which,  under  the  trover  Act,  entitles  the  present  plaintiffs  to  damages  against 
the  defendant. 

2.  That  bis  Ilonor  erred  in  charging  that  the  costs,  and  the  counsel  fees 
also,  of  the  defendants  in  the  original  action,  and  as  well  the  costs  and  portion 
of  the  counsel  fees  remaining  unpaid,  as  the  portion  of  the  latter  actually  paid, 
were  recoverable  in  the  present  action. 

3.  That  tke  verdict  was,  in  other  respects,  contrary  to  law  and  evidence. 

Yeadon,  for  the  motion,  cited  and  referred  to  Spann  vs.  Brown,  3  Hill,  324 ;  Bull. 
N.  P.  11.  The  Act  of  1627  merely  subjects  the  sureties  to  the  liabilities  of  the 
principal. 


496  CHARLESTON,  FEBRUARY,  1842.      YOL.  II.  [*229 

Petigru,  contra,  said  tliat  it  was  illegal  to  make  a  false  claim  in  trover,  luider 
the  Act  of  '27.  The  liability  for  costs,  arises  from  the  illegal  conduct  of  l)riiiging 
a  false  action.  The  counsel  fee  ought,  as  a  matter  of  course,  to  follow.  The  party 
is  amerced  for  bringing  a  false  and  groundless  action. 

Curia,  per  Evans,  J.  la  the  case  of  Brown  vs.  Spann,  3  Hill's 
Reports,  a  construction  was  given  by  this  Court  to  the  trover  Act  of 
1827  ;  and,  at  the  request  of  the  counsel  for  the  plaintiffs,  we  have  heard 
further  argument,  and  reconsidered  that  decision.  But  the  re-argument 
has  not  changed  the  opinion  expressed  in  that  case,  so  far  as  it  goes. 
So  much,  therefore,  of  this  case,  as  involves  the  right  of  the  plaintiffs  to 
recover  the  counsel  fees  paid  by  them  in  the  case  of  Ehame  vs.  Ferguson 
&  Dangerfield,  must  be  governed  by  the  case  of  Broion  vs.  Sponn. 
But  the  question  of  costs  did  not  arise  in  that  case,  and  we  are  of  opinion 
the  plaintiffs  may  be  allowed  to  retain  so  much  of  their  verdict  as  covers 
*9'-^nl  ^'^®  taxed  costs  in  Rhame's  case,  *without  conflicting  with  the 
-'  case  of  Brown  vs.  Spann.  In  that  case,  it  is  said,  in  general, 
the  Courts  are  open  to  all  who  conceive  themselves  injured,  and  all  may 
lawfully  bring  their  complaints  before  the  Court  for  adjudication.  The 
only  legal  consequence  of  failure,  is  the  payment  of  such  costs  as  the 
law  allows.  In  Buller's  Niai  Prius,  it  is  said,  "  it  is  not  actionable  to 
bring  an  action,  though  there  be  no  good  ground  for  it,  because  it  is  a 
claim  of  right,  and  the  plaintiff  finds  pledges  to  prosecute,  and  is 
amerceable  pro  f also  clamore,  and  is  liable  for  costs. 

It  would  seem  from  this,  that  although  a  man  may  bring  an  action 
without  a  legal  cause,  where  there  is  no  malice,  without  subjecting  him- 
self to  action  for  damages  ;  yet  it  is  so  far  regarded  illegal,  as  to  subject 
him  to  the  ])ayment  of  costs.  The  Act  of  1827,  no  doubt,  intended  to 
require  of  the  plaintiff  the  guaranty  of  a  bond,  with  security,  to  satisfy 
any  legal  liability  growing  out  of  the  action  of  trover,  as  well  to  secure 
the  payment  of  damages  where,  by  law,  they  are  recoverable,  as  the  costs 
where,  as  in  this  case,  the  plaiutifT  is  insolvent  and  unable  to  pay.  "We 
are  therefore,  of  opinion,  a  new  trial  should  be  had,  unless  plaintiffs  shall 
release  all  their  verdict,  except  so  much  as  was  rendered  for  the  costs  of 
the  former  action  ;  and  it  is  so  ordered. 

Richardson,  O'Xeall  and  Butler,  JJ.,  concurred. 

Wardlaw  and  Earle,  absent. 

See  Jeter  vs.  Glenn,  9  Rich.  380. 


♦231]  *Nathaniel  Heyward  vs.  Eliza  Searson. 

Whore  a  plaintifr,  in  an  action  of  trespass  to  try  title,  has  discontinued  his  suit,  he 
haa  no  ri^ht  to  call  upon  a  .Judge  to  certify  his  plat,  when  he  is  not  properly 
iMifore  tho  Court.  Th(3  certificate  of  the  .Judge,  if  granted,  would  be  extra  judi- 
cial. 

Ik'forc  Richardson,  J.,  at  Gillisonville,  Fall  Term,  1811. 

This  was   an   action  of  trespass   to    try   title,   discontinued   by  the 
plaintiff. 


*231]  HEYWARD    VS.    SE ARSON.  497 

The  defendant  moved  that  slic  bo  i)ernrnted  to  introduce  her  surveyor, 
appointed  by  the  Court,  and  swear  him  to  the  fact  that  lie  liad  platted 
the  locui<  in  quo;  and  that  the  plat  produced,  represented  it;  and  that 
the  presiding  judf^e  should  then  certify,  that  the  plat  was  the  one  made 
by  the  defendant's  surveyor,  under  a  rule  of  survey.  The  motion  was 
refused,  and  the  defendant  appeals,  and  moves  to  reverse  the  decision  on 
the  annexed  grounds. 

GROUNDS    OF   APPEAL, 

1.  Because  the  Act  of  1744  provides,  that  if  the  plaintiff,  in  an  action  of 
ejectment,  sun't-rs  a  nonsuit  or  discontinuance,  he  shall  be  barred,  unless  he 
recommence  within  two  years  ;  which  Act  would  be  a  nullity,  unless  the  locus 
in  quo  is  defined. 

2.  J3ecause  by  our  practice,  the  description  of  tlie  loois  in  the  dochiration  is 
loose  and  general,  and  without  a  plat,  does  not  exhibit  or  fix  the  land  in  dispute. 

3.  Because  the  practice  of  the  Court,  is  to  certify  the  plat  used  on  the  trial, 
for  the  reason  stated  in  the  second  ground,  and  the  reason  holds  equally  good 
in  a  case  of  nonsuit  or  discontinuance. 

Curia,  per  Richardson,  J.  Where  a  trial  for  land  has  taken  place, 
and  a  verdict  has  been  given,  the  judge  certifies  the  surveyor's  plat  as  a 
memorial,  that  that  very  plat  is  the  one  referred  to  by  the  jury,  as  pre- 
senting an  accurate  map  of  the  land  adjudged  to  the  plaintiff  or  the 
defendant. 

But  in  the  case  supposed  by  the  motion,  the  plaintiff  having  before 
discontinued  his  action,  was  already  out  of  Court,  as  much  so  as  if  the 
discontinuance  had  been  ordered  years  before;  and  no  question  liaving 
been  decided,  *the  Judge  could  hold  no  cognizance  of  the  rights  r*wToi 
01  the  parties.  '- 

The  certificate  of  the  plat  would,  therefore,  have  been  altogether  extra- 
judicial, and  a  piece  of  gratuitous  testimony,  in  a  contingent  case,  which 
had  never  been  tried,  and  might  never  arise. 

As  to  the  provisional  rights  of  the  defendant,  which  may  arise  under 
the  Act  of  17 44, (a)  if  the  plaintiff  shall  not  recommence  his  action 
within  two  years  after  the  present  discontinuance,  they  will  de})end  u})on 
such  omission.  And  should  that  occur,  the  land  that  X.  Heyward  will 
have  so  abandoned,  by  his  neglect,  must,  I  apprehend,  be  such  as  he  has 
described  in  his  declaration.  But  the  Court  ought  not  to  do  an  extra- 
judicial ex  parte  act,  upon  the  mere  assumption  that  such  neglect  is  to 
take  place ;  on  the  contrary,  both  parties  should  be  left  precisely  in  the 
situation  they  have  been  placed  by  the  discontinuance.  The  defendant 
to  enter  up  judgment,  and  the  plaintiff  to  look  to  the  consequences  that 
may  arise  under  the  Act  of  1744,  if  he  should  neglect  his  right  of  bring- 
ing a  second  action  within  the  time  limited.  The  motiou'is,  therefore, 
dismissed. 

O'Neall,  Evans,  Butler  and  "Wardla-w,  J  J.,  concurred. 

Wm.  F.  Ilutson,  for  the  motion.     J.  D.  Ednards,  contra. 

(<0  3  Stat.  G12.     An. 

YoL.  I.— 33 


498  CHARLESTON,  FEBRUARY,  1842.      YOL.  II.  [*233 


*233]  *G.  Heisembrittle  ads.  City  Couxcil. 

The  City  Council  of  Charleston  have  the  right  tinder  the  constitution  of  thifs  State, 
of  passing  an  ordinance  to  prevent  shop-keepers,  (other  than  those  licenced  hy 

'  the  city.)  from  keeping  any  spirituous  liquors,  wines,  &c.,  in  their  shops  or  in 
any  adjacent  room. 

Tried   ia   the   City  Court,  before  J.  Axon,   Recorder,  at  Charleston, 
November  Term,  1841. 

This  was  a  process  for  a  violation  of  a  city  ordinance,  prohibiting  the 
having  of  spirituous  liquors  in  a  room  adjacent  to  his  shop.  Tliere  was 
no  question  as  to  the  fact  of  the  liquor  being  there.  The  only  question 
was,  whether  the  defendant  was  owner  of  the  shop.  The  following  is 
the  testimony. 

Isnnc  A.  Rutland,  sworn,  proved  the  liquor  in  shop,  that  defendant  was  in  the 
charge  and  management  of  the  store,  that  he  went  there  as  deputy  sheriff  to  arrest 
defendant  on  civil  process,  he  asked  indulgence  until  he  got  some  one  to  put  in 
charge  of /»'.<  shop. 

James  A.  Millar,  sworn,  said  he  saw  defendant  at  the  door  of  his  shop,  on  16th 
January  last,  has  seen  him  serving  at  the  counter ;  a  charge  was  made  by  witness 
as  Marshal,  against  the  owner  of  this  store,  for  exposing  goods  on  pavement ; 
directed  the  notice  of  tliis  charge  to  Mr.  Heisembrittle  ;  the  brother  of  defendant 
came  and  paid  the  iine.     Plaiutiif's  testimony  closed. 

Defence. 

M.  H.  Meyor,  sworn,  said  that  Henry  Heisembrittle  was  tlie  owner  of  that  store, 
(corner  of  Church  and  Chalmers  streets,)  last  January;  was  at  Henry  Heisem- 
brittle's  store  in  Meeting  street,  about  that  time,  when  the  owner  of  the  house 
where  the  shop  is  kept,  brought  a  lease  of  it  to  Henry  Heisembrittle.  Cross- 
examined,  has  known  defendant  two  years,  witness  has  been  here  since  1835,  knew 
Henry  about  the  same  time  ;  Henry  owned  a  shop  in  Meeting  street,  saw  him  there 
week  before  last ;  knows  that  Henry  slept  at  his  shop  in  Meeting  street ;  has  been 
^Q., , -■  there  with  him  until  eleven  o'clock  at  niglit,  and  left  him  there  as  his  *home  ; 
-'  don't  know  if  he  owns  that  shop  now.  When  he  first  knew  defendant,  he 
was  clerk  on  South  Bay  ;  has  seen  defendant  at  the  shop,  corner  of  Church  and 
Chalmers  streets,  for  about  twelve  months  ;  has  seen  Henry  sometimes  in  Meeting 
street,  and  sometimes  at  the  corner  of  Church  and  Chalmers  streets. 

IJcnrij  Heisembrittle,  sworn,  said  he  owned  the  premises  at  the  corner  of  Church 
and  Clialmers  streets,  in  January  last :  he  paid  the  fine  alluded  to  by  Millar ;  has 
since  sold  the  shop  to  BnlnnnUe.  Cross-examined,  he  lives  now  in  King  street. 
Defendant  is  now  clerk  of  Bulwinkle,  at  the  same  shop,  he  leased  the  house  from 
Mr.  Monznn ;  his  brother  (defen<lant),  was  his  clerk  at  that  shop-,  don't  recollect 
liow  much  he  paid  his  brother;  his  brother  owed  him  a  great  deal,  settled  with 
liim  when  lie  sold  the  store,  came  to  an  account  and  paid  him  a  balance  ;  his  bro- 
tlier  came  licre  about  two  and  a  lialf  years  ago  ;  his  brother  was  indebted  to  him 
for  his  passage  out  lu^re,  and  for  his  board.  Witness  was  here  about  four  years 
before  him  ;  on  18th  January  last,  witness  lived  in  Meeting  street,  at  the  corner  of 
Lightwood's  aUey;  his  brother  managed  the  store  at  the  corner  of  Church  and 
Chalmers  streets  ;  witness  owned  that  shop  three  or  four  months  ;  had  no  other 
clerk  there  ;  did  not  set  his  brother  up  there. 

Charlr^  linlwlnlde  sworn,  said  he  now  owns  the  shop  at  the  corner  of  Church 
and  rhahiKjrs  streets  ;  defendant  is  his  clerk  ;  Itought  it  from  Henry  Heisembrittle, 
for  $.')r.fi,  i)ai<l  the  money  to  him  in  his  shop  in  Meeting  street  ;  he  pavs  defendant 
$9  per  month  for  wages.     The  testimony  here  closed. 

The  Court  charged  the  jury,  that  the  testimony  of  the  city  may  be 
regarded  as  proving /^rrma  fane,  that  defendant  was  the  owner;  but  it 
was  submitted  to  tliem,  whether  the  evidence  of  Henry  lleisembriltle  and 


*234]  HEISEMBRITTLE   aJ.<i.    CITY   COUNCIL.  499 

Bulwiiikle,  did  not  rel)nt  the  presumption  created  by  plaintiff's  testimony, 
and  proved  conclusively,  that  the  defendant  was  not  the  owner,  but  the 
mere  agent  of  his  brother. 

If  he  was  the  owner,  he  was  amenable  to  the  penalty  of  the  ordinance ; 
if  not,  he  was  entitled  to  an  acquittal. 

They  found  a  verdict  for  the  city ;  and  the  defendants  appealed  on  the 
annexed  grounds. 

*1.  That  the  penalty  inflicted  by  the  ordinance  can  only  attach  to  the  r*oqx 
owner  and  keeper  of  a  retail  grocery  store,  and  the  defendant  in  this  •- 
case  was   j)roved  by  two  unimpeached  witnesses,  to  have  been  only  the  clerk 
and  not  the  owner  and  keeper  of  the  store  in  question. 

2.  That  the  Council  had  no  authority  under  the  charter  to  pass  the  ordinance 
in  question. 

3.  That  the  verdict  was  contrary  to  law  and  evidence. 

Ycculon,  for  motion,  cited  City  Ordinance,  1  June,  1840.  He  then  commented 
on  the  testimony,  said  the  verdict  was  contrary  to  evidence.  A  clerk  cannot  he 
held  to  be  the  keeper  and  owner  of  a  shop. 

The  Ordinance  is  against  common  right.     Can  the  city  authorities  prohibit  shop- 
-keepers from  keeping  liquor  in  their  houses  or  on  their  premises  ? 

G.  B.  Erkhard,  City  Attorney,  contra.  The  recorder  submitted  the  case  very 
fairly  for  the  defendant,  and  it  being  a  question  of  fact  alone  for  the  jury,  this 
Court  will  not  interrupt  their  finding. 

Mr.  E.  cimtended  that  this  defence  was  a  specious  one,  and  but  little  reliance 
should  be  placed  upon  the  evidence  on  the  part  of  the  defendant.  Upon  the  second 
ground,  he  said,  that  the  city  council  had  the  right  to  pass  the  ordinance,  and  that 
it  was  constitutional.  These  shops  are  dangerous.  Burglaries,  arsons,  &c.,  are 
traced  to  these  shops  ;  they  are  matters  of  record. 

This  ordinance  was  produced  from  necessity.  Without  tliis,  an  illicit  traffic  with 
slaves  would  be  carried  on  by  those  shop-keepers. 

Upon  the  powers  of  the  city  council,  under  the  city  charter,  cited  the  city  char- 
ter, Stat,  at  Large,  vol.  7,  p.  81 ;  McM.  326,  Kenedy  vs.  Sowden. 

Curia,  per  Evans,  J.  As  to  the  first  ground  in  the  brief,  whether 
the  defendant  was  the  owner  of  the  shop,  that  question  was  settled  by 
the  jury,  on  what  I  would  regard  satisfactory  evidence.  The  second 
ground  presents  a  grave  question,  as  to  the  power  of  the  city  council  to 
*pass  the  ordinance  under  which  the  defendant  was  convicted.  I  r;j:oq/» 
think  there  can  be  no  question,  that  the  restraints  imposed  by  L  " 
this  ordinance  are  within  the  ordinary  powers  of  legislation.  There  is 
nothing  in  the  restrictions  imposed  by  the  constitution  of  this  State,  or 
of  the  United  States,  which  restrains  the  Legislature  from  passing  a 
general  law  like  the  one  under  consideration,  or  from  granting  the 
power  to  do  so  to  the  municipal  corporations  within  the  State  :  so  that 
the  only  questi(»n  is,  whether  the  right  to  pass  this  ordinance  has  been 
granted  to  the  city  council. 

By  the  Act  of  1783,  7  Stat.  08,  the  City  Council  of  Charleston,  among 
other  things,  arc  vested  with  the  power  to  pass  "every  by-law  or  regu- 
lation that  shall  ajipcar  to  them  requisite  and  necessary  for  the  security, 
welfare  and  conveniency  of  the  said  city,  or  for  preserving  peace,  order 
and  good  government  within  the  same."  All  such  by-laws  are  by  a  sub- 
sequent part  of  the  same  Act,  subject  to  the  revisal,  alteration  or  repeal 
of  the  Legislature.  Under  this  general  power,  the  ordinance  w^hich  the 
defendant  has  violated,  was  passed.  The  ordinance  is  in  these  words. 
"Be  it  ordained,  &e.,  that  no  person  or  persons,  now  or  hereafter  owning 


500  CHARLESTON,  FEBRUARY,  1842.      VOL.  II.  [*236 

and  keeping  a  retail  j^roeery  store  within  tlie  cit}^  where  meat,  j?rain, 
fruit,  provisions  or  other  articles  are  exposed  for  sale  ;  not  having  a 
license  from  the  City  Council  of  Charleston  in  force,  to  retail  wine,  malt 
or  spirituous  liquors,  shall  be  permitted  to  keep  in  such  shop,  or  in  any 
inner  room  adjacent  thereto,  or  on  the  premises  connected  with  such 
shop,  any  wine,  malt,  or  spirituous  liquors,"  &c. 

The  general  powers  of  legislation,  on  all  matters  connected  with  the 
security^  welfare  and"  conveniency  of  the  city,  and  for  preserving  peace 
and  order  and  good  government  within  the  same,  it  seems  to  me  are  suf- 
ficiently comprehensive  to  cover  the  ordinance  in  question.  It  is,  no 
donljt,  one  of  the  many  restraints  imposed  on  the  liberty  of  the  citizen, 
to  prevent,  if  possible,  the  vending  of  spirituous  liquors  to  slaves.  Such 
regulations  are  sometimes  apparently  tyrannical ,  but  they  must  be  sub- 
mitted to  as  necessary  police  regulations.  If  they  are  tyrannical  and 
*9qH-i  unnecessary,  the  popular  will  can  repeal  them  through  the  city 
-J  *council,  or  if  redress  should  fail  there,  by  an  appeal  to  the 
Legislature, 

The  motion  is  dismissed. 

Richardson,  O'Neall,  and  Butler,  JJ.,  concurred. 
TTarblaw  and  Earle,  absent. 

See  Copes  vs.  the  Citi/  Council,  10  Rich.  491.     An. 


The   Charleston  Insurance   &   Trust   Company   ads.   W.    ISTeve, 
who  sues  for  the  use  of  C.  F.  Kohnke. 

1.  An  Insurance  and  Trust  Company  have  the  right,  on  a  trial  upon  a  policy  of 
insurance,  to  insist  and  demand  the  production  of  the  preliminary  proof  as  a 
condition  precedent  to  the  plaintiff's  recovery.  But  they  may,  nevertheless, 
have  waived  their  right  to  call  for  such  evidence,  by  some  act  on  their  part, 
when  the  policy  was  presented  for  payment. 

2.  What  is  or  is  not  a  waiver  of  the  preliminary  proof,  must  depend  on  the  cir- 
cumstances, and  the  language  iised  at  the  time. 

3.  Wlicre  a  party  took  a  policy  of  insurance  from  an  insurance  and  trust  company, 
upon  liquors,  groceries,  &c.,  and  the  same  day  on  which  the  policy  was  exe- 
cuted, permission  was  given  by  them  to  assign  tlie  policy  to  a  third  jjerson,  it 
was  held,  that  the  party  to  whom  the  assignment  was  made,  was  entitled  to 
recover,  to  the  amount  of  the  interest  which  he  had  in  the  policy,  notwithstand- 
ing the  party  to  whom  the  policy  was  granted,  had  deprived  himself  of  his  right 
to  recover,  hy  acts  of  fraud. 

4.  The  plaintiff,  placing  the  policy  in  the  hands  of  a  third  party,  to  "  assure"  him, 
hy  coiis(!nt  of  the  underwriters,  gave  to  (Kolmke)  the  third  party,  only  an 
e(iuital)ie  interef't,  hut  such  an  interest  as  a  Court  of  law  will  recognize,  for  the 
purpose  of  doing  justice  in  a  legal  proceeding. 

Before  Butleu,  J.,  at  Charleston,  January  Term,  1842,  who  reports  the 
facts  of  the  case  as  follows  : 

This  was  an  action  of  assumpsit,  on  a  policy  of  insurance,  made  by  the 
Charleston  Insurance  and  Trust  Company,  dated  the  13th  day  of  May, 
1831).  The  iimount  insured  was  two  thousand  dollars,  and  the  property 
iurtured   was  described  in   the   policy  as  "stock  groceries  and  liquors. 


^238 J  CHARLESTON  INS.  &  TRUST  CO.  cuh.  NEVE.  501 


♦contained  in  the  two  story  wooden  house,  with  shingle  roof,  situ- 


[*238 


ated  at  No.  31,  State  sireet,  and  occupied  by  tlie  assured  in  tlie 
p:roccry  business,  as  described  in  tlie  offer,  Xo.  1983,  filed  in  this  office." 
It  was  it)  evidence,  that  this  store,  which  was  a  grocery  and  liquor  store, 
had  belonged  to  C.  F.  Kohnkc  ;  that  in  May,  1839,  (the  i)recise  day 
was  not  fixed  in  evidence,)  Kohnke  had  sold  out  the  stock  to  William 
Neve,  for  the  sum  of  two  thousand  and  two  hundred  dollars,  and  of  this 
simi  twelve  hundred  dollars  were  [)aid  in  cash,  and  to  secure  the  balance, 
Neve  confessed  a  judgment  in  favor  of  C  F,  Kohnke,  for  one  thousand 
dollars.  The  confession  of  judgment  appears  to  have  been  entered  up  iu 
the  office  of  the  clerk  of  the  Court  of  Common  Pleas,  for  Charleston 
district,  the  same  day  that  the  policy  was  executed.  At  the  time  of  the 
execution  of  the  policy  by  the  defendant,  permission  was  granted  to  Neve 
to  assign  the  policy  to  C.  F.  Kohnke.  A  day  or  two  after  the  date  of 
the  policy,  Kolinke,  being  about  to  leave  this  country,  ])laced  the  policy 
in  the  hands  of  John  Klinck,  who  seems  to  have  been  his  agent.  There 
was  no  assignment  of  the  policy,  in  writing,  from  Neve  to  Kohne,  at  the 
time  that  it  was  delivered  to  Kohnke.  The  assignment  which  is  now  on 
the  policy,  was  written  subsequently  to  the  commencement  of  the  suit. 
The  sale  from  Kohnke  to  Neve  was  an  absolute  sale,  and  Kohnke  seems 
to  have  retained  no  interest  in  the  stock,  except  through  his  confession  of 
judgment.  In  November,  1840,  Neve  applied  for  insurance  on  the  stock 
in  the  same  store,  to  Alexander  Robinson,  agent  for  the  Columbia  lusu- 
rance  Company.  They  could  not  agree  as  to  the  rate  of  premium,  and 
no  insurance  was  at  that  time  effected.  The  first  day  of  January,  1841, 
Neve  again  applied  to  Mr.  Robinson  for  insurance.  Mr.  Robinson 
exhibited  some  surprise,  and  asked  him  if  he  had  been  his  own  under- 
writer, and  asked  him,  also,  if  there  was  any  other  insurance  on  the 
property  ?  Neve  told  Robinson  that  there  was  no  other  insurance  on  the 
property,  and  after  an  examination  of  the  premises,  Robinson,  as  the 
agent  of  the  Columbia  Company,  insured  the  stock.  The  policy  of  the 
Columbia  Insurance  Company  described  the  property  insured  as  follows  : 
"  A  stock  of  groceries,  liquors,  wines,  &c.,  contained  ''in  the  two  r:>:.-)qQ 
story  wooden  building,  with  shingle  roof,  and  in  the  cellar.  No,  31  L  " 
State  street,  Charleston,  occui)ied  by  him  (William  Neve)  in  the  grocery 
business,  and  as  a  residence." 

On  the  night  of  the  27th  of  April,  1840,  the  building  and  entire  stock 
was  consumed  by  fire,  and  on  the  28th,  the  next  day,  Neve  rendered  iu  a 
statement  to  the  defendants  of  his  loss,  amounting  in  the  aggregate,  to 
$6,500.  A  question  was  made  iu  the  case,  as  to  the  statement,  and  I 
have  annexed  a  copy  of  it  to  this  report.  Tlie  same  day  on  which  Neve 
rendered  his  statement  to  the  defendants,  or  soon  after,  Mr.  Moise,  who 
was  the  legal  adviser  of  Kolinke,  and  in  whose  possession  the  policy  had 
been  jilaced  by  Mr.  Klinck,  the  day  after  the  fire,  went  to  the  office  of 
the  defendants,  and  gave  to  the  President,  ^Mr.  Street,  notice  of  the  claim 
of  Kolinke,  and  seemed  to  have  inquired  as  to  tlie  intention  of  the  Com- 
pany, for  Mr.  Street  informed  him,  that  he  would  ])refer  to  submit  the 
matter  to  the  board  of  directors,  before  he  would  give  an  answer.  The 
next  day,  or  soon  after,  .Mr.  Moise  called  again,  and  J\Ir.  Sireet  then 
informed  him,  tiiat  the  Company  declined  paying  the  amount,  because 
Neve  had  effected  a  second  insurance,  and  because  the  directors  believed 


502  CHARLESTON,  FEBRUARY,  1842.       VOL.  II  [*239 

tliat  the  premises  had  been  fired  by  Neve,  or  some  objection  similar  in 
substance,  and  manifesting  that  they  supposed  Neve  had  not  acted  fairly 
in  the  matter.  Nothing  further  passed  between  the  parties — and  soon 
after  this  action  was  commenced  for  the  present  plaintiff. 

At  the  trial  of  the  case,  the  fire,  and  the  destruction  of  the  building  and 
contents,  were  proved.  The  value  of  the  stock  was  not  a  matter  concern- 
ing which  the  witnesses  agreed.  The  stock  in  the  store  was  proved  to 
have  consisted  of  groceries,  licpiors,  and  some  inferior  or  common  dry 
goods,  such  as  homespuns.  And  it  seems  that  one  side  of  the  store  was 
kept  for  these  dry  goods,  but  the  value,  as  a  portion  of  his  stock,  was  not 
proved,  except  generally,  that  the  goods  were  of  a  common  kind. 

Mr.  Estill  thought  the  whole  stock  worth  about  $4,0U0,  but  his  opinion 
■was  leased  upon  the  price  that  Neve  had  asked  for  the  stock  about  six 
months  before  the  fire,  on  some  occasion  when  Estill  introduced  a  friend 
*oim  ff 'his  to  *Neve,  in  consequence  of  learning  from  his  friend,  that 
-•  he  was  desirous  of  engaging  in  that  kind  of  business,  and  learning 
also  from  Neve,  that  he  was  desirous  of  selling  out  his  interest  in  the 
stock,  and  changing  his  business.  Except  from  this  circumstance,  and  a 
cursory  view  of  the  store,  when  he  was  making  his  purchases,  he  professed 
to  know  nothing  of  the  value  of  the  stock.  Mr.  Burckmyer  thought  the 
stock  was  worth  about  $1,500.  Mr.  Rose,  who  was  engaged  to  take  an 
account  of  the  stock  at  the  time  of  the  sale  from  Kohnke  to  Neve,  proved 
that  it  was  then  put  down  at  $2,200.  Mr  Robinson  thought  the  stock 
was  not  worth  more  than  2  or  $3,000.  Upon  this  proof  the  plaintiff 
rested  his  case. 

For  the  defendants,  several  objections  were  urged. 

1.  Thiit  there  hud  been  no  conipliunce  with  the  eleventh  condition  of  the 
policy — that  no  certificate,  as  is  required  by  the  terms  of  that  condition,  had 
been  proved  to  have  been  submitted  to  the  defendants — that  a  strict  compliance 
with  this,  was  in  the  nature  of  a  condition  precedent,  and  without  proving  per- 
formance, there  could  be  no  cause  of  action. 

2.  That  the  interest  of  Kohnke  in  this  stock,  was  not  an  insurable  interest, 
and  if  it  was,  it  should  have  been  so  described,  in  the  policy,  and  so  represented 
at  the  time  of  maiiing  the  insurance. 

3.  'J'liat  there  was  no  assignment  of  the  policy.  That  mere  delivery  of  the 
policy  did  not  give  the  holder  the  rights  of  an  assignee,  but  only  of  a  depository 
who  had  no  higher  right  than  the  original  assured. 

4.  That  tlie  ])olicy  being  void,  so  far  as  Neve  was  concerned,  by  the  second 
insurance,  which  he  had  made  without  notice,  it  was  void  also  in  the  hands  of 
all  parlies  who  claimed  through  hi"i. 

5.  That  there  was  sufficient  evidence  of  fraud,  to  warrant  the  jury  in  render- 
ing in  a  verdict  for  the  defendants. 

In  relation  to  the  second  insurance,  the  following  provision  appears  in 
tlie  policy,  "and  if  the  saiil  assured,  or  his  assigns,  shall  hereafter  make 
any  other  insurance  on  the  .same  property,  and  shall  not,  with  all  rcason- 
♦  241 1  ^'*'^'  (JiliRcuce,  *give  notice  thereof  to  this  Company,  and  have  the 
-I  same  endorsed  on  this  instrument,  or  otherwise  acknowledged  by 
them  in  writing,  this  policy  shall  cease,  and  be  of  no  further  effect." 

The  .same  grounds  that  were  taken  below  to  resist  the  recovery,  are 
now  taken  on  the  apjjcal,  and  I  will  give  the  result  of  my  judgment, 
rather  than  my  reasons  for  it,  on  each  one,  in  the  order  iu  which  they 
arc  stated. 


*241]  CHARLESTON  INS.  &  TKUST  CO.  a(h.  NEVE.  503 

1.  I  regarded  a  compliance  on  the  part  of  tlic  plaintiff,  with  the  11th 
condition  in  the  policy,  as  a  condition  precedent;  and  that  t lie  defend- 
ants had  a  right  to  reqnire  a  certificate  from  a  clergyman  or  justice  of 
tiie  quorum,  stating  that  he  believed  the  property  insured  iiad  been 
destroyed  accidentally  or  without  criminal  design  by  the  i)laintilf — no 
such  certificate  was  produced  on  the  trial.  The  certificate  of  one  Jef- 
fries was  produced,  who  was  not  proved  to  be,  nor  was  he,  I  believe, 
either  a  clergyman  or  a  justice  of  the  quorum.  From  the  fact  that 
plaintiff  was  advertised  by  plea  of  the  defendant,  that  such  certificate  was 
required,  it  might  be  inferred  that  he  could  not  produce  one  ;  for  I  am 
inclined  to  think,  that  he  would  iiave  regarded  it  as  a  snflicicnt  compli- 
ance with  the  condition,  if  the  ])roi)er  certificate  liad  been  produced  at 
the  trial.  Although  this  preliminary  proof  was  necessary  to  subject  the 
Insurance  Company  to  liability,  it  was,  nevertheless,  in  their  i)Ower  to 
waive  it,  and  to  rely  exclusively  on  other  grounds  of  defence  ;  and  it 
was  contended,  on  the  part  of  the  plaintiff,  tiiat  such  evidence  had  been 
waived,  when  the  policy  was  presented  for  payment.  This  depended 
entirely  upon  what  Mr.  Street  said  to  Mr.  Moise — Mr.  Moise  seemed  to 
have  regarded  it  as  a  waiver,  as  the  proof  was  not  insisted  on  at  the 
time,  and  it  may  have  been  so — when,  however,  the  agent  of  the  Com- 
pany said,  that  his  refusal  to  pay  was  founded  on  the  belief  that  Neve 
had  fired  his  own  house,  as  well  as  that  he  had  effected  a  double  insu- 
rance, it  seemed  to  me  (and  I  said  so  to  the  jury)  it  was  not  a  waiver  of 
any  evidence  that  was  requisite  to  satisfy  the  Company  that  the  house 
was  not  burnt  by  design.  As  I  observed  by  adjudicated  cases,  that  this 
is  always  a  question  of  fact  to  be  sul)mitted  to  a  jury,  I  sul)mit-  pg -c, 
ted  this  to  the  finding  of  the  jury.  What  is  or  is  not  a  waiver  of  L  "^  -■ 
preliminary  proof,  must  depend  on  circumstances,  and  the  language  used 
at  the  time.  In  general,  I  thiidc  it  is  right  that  the  Company  should 
insist  on  the  proof,  at  the  time  the  policy  is  presented  for  [)ayment  after 
the  loss. 

2.  It  was  apparent  that  Kohnke  had  no  legal  interest  in  the  property 
insured.  His  only  interest  was  that  of  a  general  lien  by  his  judgment, 
to  the  extent  of  $1,000.  1st,  was  this  an  insurable  interest;  and  2d,  was 
it  the  interest  which  the  Company  had  in  view  at  the  time  the  policy  was 
under-written  ?  I  am  now  inclined  to  think,  as  I  thought  on  the  trial  of 
the  case,  (though  I  did  not  think  so  on  the  trial  of  another  case  with 
which  this  is  connected,)  that  a  lien  by  judgment  may  be  made  the  sub- 
ject of  insurance — it  is  insurable,  provided  it  be  made  known  to  the 
underwriters  to  be  the  subject  of  the  policy.  The  great  security  which 
the  underwriters  have  against  the  risks  insured  against,  is,  that  the 
assured  shall  have  an  interest  to  preserve  the  property  — hence  they  will 
rarely  insure  beyond  the  interest  of  the  assured.  The  underwriters  con- 
sented in  this  case,  that  the  policy  might  be  assigned  to  Kohnke,  and 
from  that  circumstance,  they  may  have  been  aware  of  Kohnke's  interest. 
I  would  infer,  however,  that  they  supposed  the  confession  of  judgment 
was  for  the  wtiole  amount  of  the  goods  sold.  I  said  to  the  jury,  that  if 
they  were  satisfied  that  the  Company  knew  what  Kohidce's  interest  was, 
they  might  regard  the  policy  as  covering  it  for  his  benefit. 

3.  On  this  ground  I  had  great  doubt — the  assignment  was  not  written 
until  after  the  risk  had  occurred,  but  the  policy  was  put  into  Kohnke's 


504  CnARLESTOX,  FEBRUARY,  1842.      VOL.  II.  [*'2 1^2 

possession  nt  tho  time  it  was  executed.  Iiulecil,  it  was  said  that  Nevo 
never  had  possession  of  the  i)aper — was  the  delivery  to  Kolinke  a  g-ood 
assi-xnnient  ?  The  policy  beiuf"-  a  chose  in  action,  was  not  assignable,  so 
ns  to  <i"ive  the  transferee  the  rijjfht  to  sue  on  it;  or  to  cnforci'  any  strict 
lejrid  ri^iit  in  his  own  name.  Assi};-nment  of  such  ])apers  will  f;ivo  tie 
assi!:;nee  such  etpiitahle  ri^-hts  as  will  l)c  respected  in  a  court  of  law,  and 
if  the  ])olicy  was  suilicicully  assig-ned,  the  Court  oug-lit  to  siive  to  tho 
♦  oi'^T  'i'^^'n"t'^^  the  profit  of  it,  in  the  name  '''of  Neve,  the  orifi'inal 
*'  -^  assignee,  or  the  person  in  w  liose  naiui"  the  property  was  insured. 
For  the  purpose  of  haviuf;;  all  the  points  in  the  case  deeitled,  I  told  the 
jury  that  an  assin-iunent  of  the  policy  by  parol,  shouUl  be  regarded  as 
suflicicnt. 

4.  If  the  phiiiitilV  was  entitled  to  recover  at  all,  what  should  be  the 
measure  of  damages  r*  The  action  was  in  Neve's  name,  and  was 
l)rought  to  rccovi'r  ^52,000 — and  a  recovery  for  that  amount  ought  to 
have  Ik'cu  had,  if  the  policy  were  not  atl'ceted  by  a  subsecinent  double 
insurance.  Neve  did  procure  another  policy  to  be  elVected  in  the  Colum- 
bia ollice,  on  a  stock  of  goods  of  the  same  tlescri|)tion  as  those  described 
in  the  policy,  and  the  iindinii-  of  the  jury  establishes  tho  fact,  which  was 
well  warranted  by  the  evidenee,  that  the  last  policy  was  procured  by 
fraud  and  nusrepreseidation,  otherwise  it  woidil  not  have  l)een  under- 
written by  lJol)inson,  the  agent  of  the  C\>ltnnbia  ollice.  ^Vhere  the  us- 
snreil  have  double  ])olicies,  they  have  little  interest  to  take  care  oi'  tho 
jM'operty  insured,  anil  might  yield  to  a  crinunal  temptation  to  ilestroy  it. 
AVas,  then,  the  making  the  second  jiolicy  a  double  judicy  ?  This 
depends  on  the  character  of  the  lirst,  and  Neve's  interest  in  it.  Uut  for 
the  last,  the  lirst  would  have  been  good  for  $_*,00t),  to  be  ilividinl  between 
Neve  and  Kohnke.  .Vs  far  as  Neve's  interest  was  concerned,  1  thought 
it  forfeited  by  his  fraud.  Did  this  deprive  him  of  the  right  of  recovering 
for  Kohnke  the  extent  of  his  equitable  iiderest '/ — I  thought  not..  Tho 
jury  found  against  the  defendants  on  all  [joints  in  which  Kohnke  was 
concerned,  anil  found  for  tlie  plaintilV  the  amount  of  Kohnke's  interest  in 
the  policy,  to  wit,  $1,000  with  interest. 

SlnUmciit  of  the  loss  of  William  Neve  on  his  stock  in  trailc  at  theftre  on  the  11th  April, 
18tt),  in  the  Vharleston  Insurance  and  Trust  Conipani/,  for  !?2,(HH\  assit/nvd  to  C.  F. 
Kohnke — store  situated  in  State  street. 

Amoiitit  of  stiM'k  in  store,  $(!,r)00,  Avliieli  eonsisted  of  litiuors,  to  wit: 

WiMi>  .•mil  IJiiiiuly, -  $,''),, "4H1 

I'liiiiT,  .Me,  ;iii(l  Cider, l!tH> 

Qrocorii'.H,  to  wit  ; 

Hu-ar.  Tea,  aihl   IJir,-,  .Vc.,  ."ve., 1,000 


$(;,500 


Ttioro  was  imtliin^'  s.hvimI. 

*2M|  "liKOlNUS    OF    AlTKAIi. 

1.  Tliiit  llieeomlilioa  in  tlie  poliey,  us  to  the  mode  and  form  of  stating  u  loss, 
is  IV  condilidii  iireeeiient,  on  the  \uu-i  of  the  ussiueii,  and  that  until  the  loss  and 
claim  is  niiide  us  direetcil  in  the  said  eoiulitioii,  tlieri>  is  no  euiise  or  right 
ol'aetion  uguiiisl  the  insurer,  'riiiit  ia  this  ease,  there  was  no  sanieient  proof 
of  a  waiver  of  a  ]u'eliiniiiury  itrool",  or  unv  part  of  it. 

'J.  'i'ii.il  the  party  pluiatill,  nmst  piuvi-  an  interest  existini--  at  the  time  of  the 


*2-44]  CHARLESTON  INS.  &  TRUST  CO.  ads.  NEVE.  505 

niiikiiig  of  the  policy,  ami  at  the  time  of  the  loss.     And  that  in  this  case  there 
was  iiu  proof  of  an  interest  at  the  time  of  n)ukin<(  the  insurance. 

3.  That  a  ])olicy  on  <^roce)'ies  and  liquors,  assi<,nied  to  a  judgment  creditor, 
does  not  protect  the  judgment  creditor  in  case  of  loss.  Because  a  judgment 
is  not  an  insurable  interest,  and  because  if  it  is,  it  is  not  covered  by  a  policy  on 
groceries  and  licpiors,  but  ought  to  be  described  specially. 

4.  That  an  assignment  of  a  policy  of  insurance,  to  be  valid,  so  as  to  entitle 
the  assignee,  to  a  right  of  action  against  the  assured,  must  be  a  perfect 
transfer  of  the  right  of  the  assignor,  executed  in  as  formal  a  manner  as  the 
instrument  to  be  assigned. 

5.  Tiiat  the  possession  of  a  policy  without  assignment  in  writing,  gives  the 
party  holding  the  policy,  only  the  rights  of  a  depositary,  and  makes  him  liable 
to  all  the  defences  against  the  original  insurer. 

6.  That  the  second  insurance  by  Neve  vitiated  his  claim,  and  all  parties 
claiming  through  him.  That  Kohnke,  being  a  mere  depositary,  and  claiming 
through  Neve,  is  barred  of  all  claim,  from  Neve  having  avoided  the  policy  by 
a  second  insurance,  without  notice. 

7.  That  the  facts  of  the  case  sufficiently  made  out  a  case  of  fraud,  which  is 
sufficient  to  avoid  the  policy  of  insurance. 

8.  Because  the  verdict  was  in  other  respects  against  law. 

Magrath,  for  the  motion,  cited  first,  as  to  the  question  of  preliminary  proof,  6  T. 
R.  7H» ;  2  IT.  B.  577,  note  ;  1  II.  B.  258  ;  Hughes  on  Ins.  390  ;  Ellis  on  Ins.  10. 
The  conditions*  of  tlie  i)olicv,  Mr.  Magrath  contended,  must  be  compUed  r*24ii 
with:  cited  (J  Wend.  488;  2*^ Pet.  53;  7  Cow.  4tJ5  ;  12  Wend.  457;  PliiU.  '■ 
on  Ins.  15b',  157.  The  conduct  of  the  president  of  tlie  company  did  not  dispense 
with  the  necessity  of  tlie  preliminary  proof;  was  there  in  tlie  acts  of  tlie  president 
any  waiver  ? 

2.  Was  there  an  insurable  interest  1  cited  1  Phill.  on  Ins.  27  ;  4  B.  P.  C.  431 
Ins.  18. 

3.  If  there  is  an  interest,  it  must  be  set  out  fully  and  truly :  cited  1  Pliill.  G4 
4  Taun.  331 ;  2  ,1.  Cas.  353 ;  3  Ikirn.  1401. 

4  and  5.  As  to  the  assignment,  cited  Bac.  Abr.  Title  Assignment ;  2  Co.  56(5 
the  note  J.  Phill.  on  Ins.  11.  The  assignment  must  be  a  perfect  transfer  of  the 
right  of  the  assignor,  executed  in  as  formal  a  manner  as  the  interest  assigned. 
One  in  the  possession  of  an  interest  delivered  to  him  as  a  lien  for  his  security,  has 
a  mere  authority  to  receive  in  the  name  of  the  principal ;  and  hence  any  defence 
against  him  is  good:  10  Sarg.  &  Rawl.  412;  Harp.  334.  He  has  a  mere  equity, 
and  is  of  course  liable  to  the  same  defences  which  the  original  insurer  would  have. 
The  assignee  is  considered  as  tlie  original  insurer.     5  Pick.  81  ;  8  Wheat.  268. 

The  (jth  ground  depended  upon  the  previous  assignment. 

Kunharrit,  contra,  said,  1st.  That  the  preliminary  proof  might  be  waived ;  and 
in  support  of  this  proposition  cited  6  H.  &  J.  408.  The  proof  will  not  be  required, 
when  payment  is  demanded  it  is  considered  as  waived  :   2  J.  192. 

2ud  ground,  cited  Phill.  on  Ins.  17.  If  there  is  a  possibility  of  loss,  the  party 
has  an  insurable  interest :  Pliill.  on  Ins.  53 ;  1  Marsh,  on  Ins.  1(15  ;  2  lb.  789.  Is 
it  necessary  to  mention  the  interest?  10  Pick.  40  ;  1  Caines,  27(3.  Both  of  those 
cases  decide  that  question  in  the  negative. 

3rd.  He  contended  that  the  jiolicy  was  for  the  benefit  of  Kohnhe,  9  Wend.  404. 
No  act  done  by  Nfve  could  atlect  Kohnke,  1  N.  &  McC.  449  ;  5  Wheat.  277  ;  2 
Bay.  209  ;  9  E.  72 ;  Park,  on  Ins.  280.  A  party  having  a  partial  interest  may 
recover  the  whole  amount  assured,  18  Pick.  523. 

Moise,  on  same  side,  alluded  to  the  attempt  of  the  *Insurance  Company  r^oig 
to  get  rid  of  their  liability,  on  technical  grounds,  as  being  inconsistent  with  •- 
general  principles.  1st.  Is  there  any  evidenee  that  .Jelfreys  is  not  a  magistrate  or 
a  clergyman  ?  It  is  for  the  defendants  to  sliow  that  he  was  not  a  magistrate  or 
clergyman  ;  cited  G  Cow.  404 ;  Dud.  150  ;  7  Cow.  4(55.  The  proof  was  waived  by 
the  president  with  the  consent  of  the  directors  ;  this  was  sufficient,  20  Pick.  389  ; 
waiver,  ur  that  proof  was  made,  may  be  presumed,  2  Wend.  64 ;  the  silence  of 


506  CHARLESTON,  FEBRUARY,  1842.      YOL.  II.  [*246 

the  defendants  is  evidence  of  a  waiver,  10  Pet.  540  ;  9  Wend.  404.  A  mortgagor 
or  mortgagee  each  mav  insure,  and  the  mortgagee  may  insure  in  the  name  of  the 
mortgag-or.  1  Bay.  24(3.  Interest  insurable,  Marsh.  Ins.  91  ;  any  thing  is  insur- 
able, IPet.  103-  3  Kent.  Com.  276;  pecuniary  loss  is  enough.  The  consent  of 
the  Insurance  Company,  and  the  possession  by  Kohnke,  is  evidence  sufficient  of 
the  assignment  to  him.  Harp.  15U ;  payment  to  the  holder  of  a  bond  endorsed  in 
blank  discharges  the  obligor.  The  company  made  the  policy  negotiable  by  their 
consent.  1  Hill,  172  ;  an  assignee  may  fill  up  a  blank  assignment.  3  Coke.  Rep. 
26  :  8  lb.  85  ;  1  Salk.  301 ;  1  Burr.  502 ;  Shep.  Touch.  58  ;  2  Tread.  770.  A  deed 
delivered  for  the  use  of  another  is  sufficient. 

Curia,  per  El'tler,  J.  This  case  presents  some  questions  of  intri- 
cacy, rather  from  the  confusion  with  which  the  parties  have  made  tlicir 
contract,  than  from  any  difficulty  in  pronouncing  on  the  justice  and  legal 
character  of  the  principles  involved  Policies  of  insurance  are  made  on 
the  confidence  that  the  contracts  under  them  will  be  observed  and  kept 
in  good  faith  by  all  the  parties  connected  with  them  ;  and  they  sliould  be 
freely  and  liberally  construed  by  Courts  to  effect  the  intention  of  the  par- 
ties; when  the  risk  occurs  which  is  covered  by  the  policy,  the  under- 
writer should  promptly  indemnify  the  assured,  without  evasion  or  com- 
plaint. On  the  other  side,  the  policy  sliould  always  be  obtained  on  fair 
representation,  and  the  risk  should  not  be  subsecpiently  increased  by 
fraud  and  misrepresentation.  The  finding  of  the  jury  in  this  case  con- 
victs Neve  of  a  fraud,  and  is  a  censure  on  the  company  for  insisting 
on  the  preliminary  proof,  so  far  as  Kohnke  is  concerned  ;  one  may  be 
just,  but  I  think  the  *other  is  not ;  I  thought  at  the  circuit,  and 
am  still  inclined  to  the  same  opinion,  that  the  defendant  had  a 
right  to  insist  at  the  trial  on  the  production  of  the  preliminary  proof,  as 
a  condition  precedent  to  the  plaintiff's  recovery.  A  majority  of  the 
Court  think,  however,  that  the  proof  was  waived  by  the  company  when 
demand  was  made  for  payment  of  the  policy,  and  they  therefore  sustained 
the  finding  of  the  jury  on  this  point.  It  is  always  in  the  power  of  the  under- 
writer to  insist  on  the  evidence  alluded  to,  at  the  time  the  policy  is  pre- 
sented for  payment ;  and  when  it  cannot  be  produced  by  the  assured,  it 
would  be  strong  evidence  that  the  risk  had  not  been  the  result  of  acci- 
dent. At  any  rate,  having  contracted  with  the  underwriters,  that  a 
stranger  would  do  some  act  to  entitle  the  assured  to  recover,  the  stii)ula- 
tioii,  however  unreasonable,  must  be  complied  with  ;  I  do  not  think  my- 
self that  such  a  stipulation  is  unreasonable.  It  is  founded  in  prudence, 
and  should  not  be  dispensed  with  on  the  part  of  the  underwriter,  when 
there  is  good  ground  to  believe  that  the  risk  has  been  brought  about  by 
fraud  and  criminal  design.  The  defendants  in  this  case  may  have  for- 
borne to  demand  tlie  preliminary  proof,  under  some  a})i)rehension  that  if 
it  had  Ijoen  ])roduccd,  it  might  have  prejudiced  their  case  on  the  trial  of 
the  main  issue.  I  do  not  think  that  any  intention  of  a  waiver  on  their 
part.  Hut  their  conduct  may  have  deceived  others,  who  might  have  been 
aljle  at  the  time  t(»  comply  with  a  specific  regidation,  if  it  had  been  made. 
And  as  they  did  not  make  the  requisition  at  the  time,  it  is  perhaps 
right.  This  jxtint  must  therefore  be  regarded  as  ruled  against  the  de- 
fenflants  by  the  verdict  of  the  jury. 

All  the  other  grounds  resolve  themselves  into  this  question.  Had 
Kohnke,  at  the  time  the  [lulicy  was  e.\ecuted,  or  afterwards,  any  interest 


*247] 


*24:72  CHARLESTON  INS.  &  TRUST  CO.  ads.  NEVE.  507 

iu  it  tliat  can  be  recognized  and  protected  in  a  Court  of  law  ?  And  if 
so,  was  it  such  an  interest  as  could  not  be  destroyed  l)y  the  hand  of 
Neve  ?  Which  involves  the  further  question,  had  Neve  any  interest  at 
all  in  the  policy  after  it  was  transferred  to  Kohnke  by  delivery  ;  retain- 
ing no  right  iii  himself?  It  is  certain  that  by  the  terms  of  the  policy 
Kohnke  had  no  legal  interest  in  it  that  could  be  enforced  in  his  own 
name.  The  policy  is  taken  in  Neve's  name  on  property  of  which  he 
*had  the  legal  title.  The  i)remium  of  two  thousand  dollars  for  r*243 
property  valued  at  three  thousuuil,  at  the  rate  of  two  and  a  half 
per  cent,  was  paid  by  him.  In  placing  it  in  possession  of  Kohnke,  by 
the  consent  of  the  underwriters,  to  "  a.s.-jin-e"  Kolmke,  as  it  is  exi)rcssed, 
he  gave  Kohnke  thereby  only  an  equitable  interest.('r )  Such,  however, 
as  a  Court  of  law  will  recognize  for  the  purpose  of  doing  justice  in  a 
strictly  legal  proceeding  in  the  name  of  the  assured.  Had  the  policy 
been  assigned  in  the  most  solemn  form,  it  would  not  have  given  Kohnke 
a  legal  right  to  sue  in  his  own  name,  or  to  insist  on  any  legal  right.  Iu 
such  case  he  would  have  had  no  more  than  an  equitable  interest.  As  a  de- 
pository, he  has  the  same  interest,  if  the  policy  was  delivered  to  him  before 
the  risk  happened,  of  which  there  could  be  no  serious  doubt.  liV' hatever 
his  interest  was,  though  equitable,  we  think  was  acquired  howi  fide  by  the 
consent  of  the  company.  They  knew  the  circumstances  under  which  the 
goods  was  insured  ;  that  they  were  in  the  actual  possession  of  Neve,  while 
the  other  had  a  general  lien  on  them.  And  the  company  undertook  to 
protect  this  general  lien  by  letting  the  policy  go  into  the  possession  of 
Kohnke  as  his  assurance  ;  and  they  could  not  deprive  him  of  the  benefit 
of  this  security  without  fault  on  his  part.  If  it  had  been  otherwise,  per- 
haps, the  risk  would  not  have  happened,  as  it  may  have  increased  Neve's 
interest  to  procure  another  policy,  and  diminished  his  diligence  in  taking 
care  of  the  goods  in  his  store.  The  vigilance  of  self-interest  is  the  eye  of 
prudence ;  and  when  that  is  weakened,  the  underwriters  of  a  policy 
increase  the  danger  of  their  liability.  They  must  do  what  they  intended 
for  Knhnke,  and  cannot  let  his  rights  suffer  by  the  wrongful  acts  of  Neve. 
"We  think,  therefore,  that  as  this  action  was  in  fact  for  Kohnke's  benefit, 
he  was  entitled  to  be  indemnified  to  the  extent  of  his  injury.  According 
to  this  view,  it  will  appear  that  Kohnke  had  not  an  absolute,  exclusive 
and  indefeasible  interest  iu  the  policy  ;  but  that  as  an  additional  security 
to  his  confession  of  judgment  it  was  contingent,  collateral  and  cumula- 
tive. In  no  event  was  it  worth  to  him  more  than  $1000,  whilst  it  might 
have  been  worth  to  Neve  $2000.  Could  it  be  questioned  that  Neve  had 
it  in  his  power  to  redeem  this  *security,  and  to  acquire  a  per-  r^ji-^in 
feet  right  to  it  by  satisfying  the  judgment  ?  Suppose  he  had  paid  ■- 
off  the  judgment  in  two  days  after  it  was  confessed,  would  the  under- 
writers of  the  policy  have  been  entirely  discharged  ?  Such  a  pretence, 
on  their  part,  would  have  been  inconsistent  with  common  sense,  and 
their  undoubted  intention  at  the  origin  of  their  contract.  They  never 
could  have  supposed  that  they  had  improved  their  condition,  when  they 
consented  that  Kohnke  should  be  assured  or  have  an  assignment  of  the 
policy.  They  always  regarded  themselves  as  liable  for  $2000,  provided 
goods  to  that  amount  should  be  destroyed  accidentally  by  fire.     The 

(a)  See  5  Strob.  146  ;  11  Rich.  437  ;  7  Rich.  405. 


508  CHARLESTON,  FEBRUARY,  1842.      VOL.  II.  [*24^ 

fact  of  suffering:  two  parties  to  be  interested  in  the  same  policy,  could  net 
diminish  their  liability.  As  an  action  on  a  policy  of  insurance  is  one  of 
indemnity,  no  party  can  recover  beyond  his  loss  ;  and  if  but  twenty 
dollars'  worth  of  goods  only  had  been  destroyed  by  the  fire,  no  party 
could  have  recovered  beyond  that  amount;  and  for  the  like  reason, 
should  no  party  be  allowed  to  recover  beyond  his  actual  interest.  The 
jury,  therefore,  properly  restricted  the  recovery  of  the  plaintiff  in  this 
case,  to  Kohnke's  loss,  notwithstanding  goods  to  a  larger  amount  may- 
have  been  destroyed  ;  for  Neve,  by  his  own  unfair  dealing,  subsequently 
deprived  himself  of  any  right  to  avail  himself  of  any  interest  under  this 
policy ;  as  it  contains  the  common  clause,  that  if  any  subsequent  policy 
should  be  obtained  on  the  same  stock  of  goods,  without  notice,  this  policy 
should  be  void.  As  it  will  appear,  in  another  case,  a  secondary  policy  was 
obtained  without  notice,  and  for  that  reason  it  is  right  that  Neve  should 
forfeit  his  rights  under  this  by  his  own  fraud.  It  is  said,  however,  that 
Neve  having  parted  with  all  right  to  this  policy,  he  had  no  interest 
in  it ;  and,  therefore,  he  was  at  perfect  liberty  to  procure  another  without 
notice.  That  suggests  a  recurrence  to  the  question,  what  interest  had 
Kohuke  in  this  policy  ?  I  have  before  said  that  he  had  the  defeasible 
interest  of  a  surety — and  I  think  that  this  view  is  fully  supported  by  the 
final  judgment  in  the  case  of  Bohert  vs.  The  Traders^  Insurance  Com- 
2Xiny,  9  Wend.  404,  4Y4  ;  17  Wendall,  631.  In  that  case  Robert  had 
procured  policies  of  insurance  on  certain  buildings,  which  were  mort- 
gaged to  one  Bolton.  The  policies,  by  the  consent  of  the  com- 
*9Tnl  P^^^'*  '^^'ere  assigned  to  Bolton.  After  the  houses  were  burnt, 
-■  Bolton,  in  the  name  of  Robert,  recovered  judgment  on  his  poli- 
cies ;  this  judgment  was  paid  off  by  and  assigned  to  Robert — who 
thereby  claimed  all  the  rights  intended  for  him  under  the  original  policy, 
and  it  was  decided  that  his  right  to  the  policy  was  restored  so  soon  as 
he  removed  the  mortgage,  or  paid  the  judgment  rendered  on  its  fore- 
closure. The  case  was  elaborately  considered  and  carried  through  all 
the  Courts  of  New  York.  See  it  as  reported  in  Wendell,  G31.  Senator 
Edwards  delivered  the  final  judgment  in  the  Court  of  Errors.  Speaking 
of  this  question,  he  says  :  "  Let  us  then  in  the  next  place  inquire  how  far 
the  rights  of  the  parties  were  aflected  by  the  assignment.  Thomas  Robert 
owed  Francis  Bolton  a  debt  of  $5500,  secured  by  his  bond  and  mortgage 
on  the  buildings  in  question,  &c.  He  owned  three  policies  of  insurance, 
in  each  of  which  it  was  stipulated  that  the  interest  of  the  assured  was  not 
assiguiiljlc  without  the  consent  of  the  company  manifested  in  writing. 
That  right  being  obtained,  &c.,  the  policies  were  assigned  to  Bolton,  as 
colhiteral  security  for  the  payment  of  his  mortgage.  Did  the  fact,  that 
they  were  so  assigned,  give  Bolton  the  absolut'e  indefeasible  interest  in 
the  policies,  or  only  a  collateral  interest  for  the  time  being  ?  I  am  of 
opinion  that  he  had  only  a  collateral  interest,  liable  to  be  divested  when- 
ever Rol)ert  paid  the  mortgage  ;  and  when  the  company  consented  to  the 
assigiinicnt,  they  consented  to  it  for  the  purj)Oses  for  which  it  was  made, 
and  tliis  consent  gave  him  the  right  then  ;  but  this  could  not  alter  or 
diminish  the  extent  of  tlie  lial^ility  of  the  company."  This  case  does  go 
so  far  a.s  to  say  that  after  Robert  had  made  his  assignment,  he  could  take 
another  policy  on  his  interest  as  mortgagor  without  notice  of  the  policy 
assigned.     I  suppose  that  was  on  the  ground  that  he  could  act  bona  fide 


*250]  BOIES    &    STUKE   (ids.    THE    STATE.  509 

in  taking  a  subsequent  policy  whilst  the  right  under  assignment  subsisted. 
Whetiior  I  could  sanction,  by  my  judgment,  this  part  of  the  case,  I  am 
not  called  on  to  determine.  For  the  right  of  recovery  on  the  different 
policies,  would  depend  on  the  interest  at  the  trial — and  the  second 
policy  might  be  worth  little  or  nothing,  if  there  could  have  been  a  full 
recovery  on  the  first.  The  point  I  wisli  to  present,  *is,  that  the  t^j^qki 
first  policy  was  not  absolutely  vested  in  the  assignee,  Kohnke —  L 
and  all  that  could  be  recovered  on  it  was  Kohnke's  interest,  when  Neve 
had  forfeited  his  right  under  it.  Had  Kohnke  held  the  policy  under  an 
assignment  made  cotenii)oraneously  with  its  execution,  as  his  only  secu- 
rity, then  he  would  have  been  entitled  to  recover  the  whole  amount,  pro- 
vided the  goods  destroyed  were  of  no  less  value  than  that  amount  at  the 
time  of  the  fire.  In  Hamhleton  vs.  Mead,  2  Burr.  1210,  Lord  Mansfield 
said  :  "  the  plaintiff's  demand  was  for  an  indemnity  ;  his  action  then, 
must  be  founded  on  the  nature  of  the  damnification,  as  it  really  is  at  the 
time  of  the  action  brought."  The  recovery  of  Kohnke  might  have  been 
less  than  the  $1000,  but  could  not  have  been  more.  This  shows  that  he 
had  not  the  entire  interest  in  the  policy  ;  and  if  the  whole  amount  could 
have  been  recovered,  it  would  have  been  as  much  for  the  benefit  of  Xeve 
as  Kohnke — the  one  having  a  legal  and  the  other  an  equitable  interest. 
Keve's  right  became  extinguished  by  his  taking  another  policy  without 
notice  of  the  existence  of  the  first.  In  attempting  to  procure  two  poli- 
cies, he  forfeited,  by  the  terms  of  the  policies  themselves,  his  right  to 
recover  on  either,  as  will  be  seen  when  the  case  of  the  Columbia  C(jmpany 
comes  to  l)e  considered.  We  think  the  jury  have  hit  the  justice  of  the 
case,  and  therefore  refuse  this  motion  to  set  aside  their  verdict. 

Richardson,  O'Neall,  Evans,  Butler,  and  Wardlaw,  JJ.,  con- 
curred. 


*BoiEs  &  Stuke  ads.  The  State. (r/)  [*252 

Wliere  two  persons  wore  jointly  indicted  for  receiving  stolen  goods,  and  one  of 
them  w.-is  acquitted,  the  acquittal  of  one  does  not  operate  as  a  discharge  to  the 
other. 

Before  Earle,  J.,  at  Charleston,  May  Term,  1841. 

The  defendants  were  jointly  indicted  for  receiving  stolen  goods ;  pleaded 
not  guilty,  and  were  tried  together.  The  verdict  was,  guilty  as  to  Boies, 
and  not  guilty  as  to  Stuke. 

There  had  been  a  former  indictment  against  them  for  the  same  offence, 
including  the  charge  of  larceny;  and  on  the  hearing,  this  was  quashed  by 
the  Circuit  Court  ;(^)  the  Attorney-General  appealed  from  this  decision, 
and  this  motion  was  still  pending  when  the  present  indictment  was  found 
by  the  grand  jury.  The  counsel  for  the  defendants  relied  on  this  to  abate 
the  present  prosecution,  and  pleaded  it  in  abatement,  or  had  leave  to  do  so. 
But  the  plea  was  overruled,  and  the  case  was  sent  to  the  jury,  who,  on  very 

(rt)  Same  parties,  two  other  cases,  1  McM.  189,  191.     An. 
(6)  1  McM.  189.     An. 


510  CHARLESTOX,  FEBRUARY,  1842.      YOL.  II.  [*252 

clear  evidence,  convicted  Boies.  The  Court  overruled  the  other  o:round 
taken,  that  as  they  were  jointly  indicted,  there  must  be  proof  of  a  joint 
receiving,  and  that  both  must  be  convicted,  or  neither;  and  the  jury  were 
instructed  that  they  might  convict  both,  or  either,  according  to  the  evi- 
dence. 

A  motion  was  made  in  this  case,  in  arrest  of  judgment,  or  for  a  new  trial,  on 
the  following  grounds: 

Ist.  Because  the  indictment,  in  this  case,  charged  a  joint  receiving,  and  the 
acquittal  of  one  of  the  defendants,  operated  as  a  discharge  to  the  other. 

2d.  Because  the  evidence  in  this  case  did  not  prove  a  joint  receiving,  which 
was  necessary  to  the  conviction  of  the  defendants,  under  the  charge  in  the 
indictment. 

3d.  That  his  Honor  erred  in  refusing  permission  to  the  defendants  to  plead 
in  abatement,  nnnc  pro  tunc,  the  pendency  of  a  prior  prosecution  for  the  same 
cause,  ruling  that  such  a  plea  was  immaterial. 

4th.  That  the  defendants  having  been  jointly  indicted  for  a  joint  offence,  a 
conviction  against  one  only,  cannot  be  supported,  and  his  Honor  erred  in  so 

*2531  ^1^''^''8'"'»- 

-■       ''Slh.  The  verdict  was  contrary  to  law  and  evidence. 

Kunhardt  and  Yeadon,  for  the  motion,  cited,  in  support,  2  Eng.  Crown  Cas.  257. 

II.  Bailey,  Attorney- General,  contra. 

Curia,  per  Evans,  J.  The  first,  second  and  fourth  grounds  in  this 
case,  are  founded  on  the  supposition,  that  as  the  defendants  were  indicted 
for  a  joint  offence,  the  proof,  to  authorize  the  conviction  of  either,  must 
correspond  with  the  allegation.  On  the  civil  side  of  the  Court,  if  a  joint 
contract  be  alleged,  the  proof  must  correspond ;  but  for  torts,  the  rule  is 
different;  a  verdict  maybe  rendered  against  as  many  as  are  proved  to 
have  participated  in  the  tort;  and  for  those  who  are  not  guilty.  The 
same  rule  prevails  in  the  Criminal  Court.  The  indictment  may  charge 
many,  but  if  the  proof  be  only  against  one,  he  may  be  convicted  and  the 
others  acquitted.  The  authority  cited  from  2  English  Crown  Cases,  257, 
docs  not,  as  the  defendant's  counsel  supposed,  sustain  his  position.  It 
goes  no  further  than  to  maintain  what  no  one  doubts,  that  successive  acts 
cannot  be  given  in  evidence  under  a  count  charging  a  joint  act.  The 
third  ground  was  not  argued,  and  is  considered  as  abandoned.  The 
motion  is  refused. 

Richardson,  O'Neall,  Butler  and  Wardlaw,  JJ.,  concurred. 
Earle,  J.,  absent. 


*254]     *The  Commissioner  in  Equity  vs.  Thomas  McWhorter. 

Where  an  nnautliorized  inquiry  has  been  instituted  in  the  Court  of  Chancery,  and 
so  dnclarod  hy  the  Court  itself,  the  deposition  of  a  witness  wlio  deposed  in  the 
clinncery  casf,  and  wlio  has  since  died,  will  not  be  received  by  a  court  of  law  in 
n  suhscijneiit  cause  between  tlic  same  parties. 

Before  O'Neall,  J.,  at  Barnwell,  Spring  Term,  1841,  who  reports  as 

follows : 
The  negro  slaves  of  the  late  Charles  Milhouse,  deceased,  not  specifi- 


*254]  COMMISSIONER  IN  EQUITT  V<i.  m'wHORTER.  511 

callv  devised  by  liis  will,  were,  under  the  decree  of  the  Court  of  Equity, 
sold  ;it  lilackville,  for  the  ])ur|)oses  of  partition.  At  that  sale,  the  neji'ro 
man  IJol)  was  sold  for  $f570  or  $680,  his  full  value,  and  purchased  by  the 
defendant,  (McWhorter,)  for  Dr.  Tarrant,  into  whose  possession  he  went 
irnincdiately  after  the  sale,  and  so  continued  until  his  death,  which  took 
place  in  four  or  five  months  after  the  sale.  Bob  was  an  elderly  man, 
between  fifty  and  sixty  years  of  a<^e.  This  bond  was  given  for  his  price. 
It  was  alleged  that  Bob  had  the  dropsy,  in  an  incipient  stage,  at  the  time 
of  the  sale,  and  that  he  died  of  it.  The  Rev.  Darling  Peeples  saw  him 
in  five  or  six  days  after  the  sale;  he  was  short-winded,  (breathing  short 
and  quick,)  weak,  swelled,  appeared  to  be  sickly  and  diseased,  and  looked 
like  he  might  have  the  droi)sy;  he  was  of  no  use,  and  died  in  a  short 
time.  He  said  that  his  observation  of  Bob  was  when  he  came  to  his 
house  for  a  load  of  corn.  Mr.  Lartigue  (of  Blackville)  said  he  had  Bob 
on  hire  one  or  two  years  before  the  sale.  He  was  frequently  sick  five  or 
six  days  at  a  time  :  he  coughed  on  such  occasions.  He  said  Dr.  Tarrant 
and  Mr.  McWhorter  frequently  saw  Bob  at  Blackville;  and  for  a  short 
time  before  the  sale,  Bob  had  a  wife  at  Dr.  Tarrant's.  He  (witness)  was 
next  to  the  last  bidder  for  l^ib ;  he  did  not  think  he  had  the  dropsy  at 
the  sale.  Mr.  Connel  proved  that  he  knew  Bub;  he,  while  at  Blackville, 
frequently  seemed  to  be  unwell ;  he  thought  it  deception.  Dr.  Haigood 
stated  that  a  difficulty  of  breathing  increased  by  action,  and  a  dry  cough, 
were  the  evidences  of  dropsy  in  the  chest.  It  was,  he  said,  a  disease  slow 
in  its  development,  but  one  which  rushed  rapidly  to  a  termination,  whea 
the  disease  was  matured.*  He  said  he  could  not  speak  with  cer- 
tainty of  the  nature  or  origin  of  Bob's  disease,  without  a  history 
of  his  case. 

On  the  part  of  the  plaintiffs,  Mr.  Tyler,  one  of  the  executors  of 
Charles  Milhouse,  but  having  no  interest  in  the  property  sold  at  Black- 
ville, was  sworn.  lie,  as  one  of  the  executors,  had  hired  Bob  out  for 
five  or  six  years  before  the  sale.  On  the  day  of  sale,  he  said  Bob  looked 
as  well  as  usual.  He  knew  nothing,  he  said,  of  the  negro  being  diseased 
at  any  time  before  the  sale.  M'Whorter  and  Dr.  Tarrant  knew  the 
negro  lietler  than  he  did. 

This  was  the  substance  of  all  the  evidence^ given  on  the  question  of 
soundness.  The  defendants  proposed  to  read  the  examination  of  Dr. 
Amoka,  (a  witness  who  died  l)efore  the  trial,)  taken  under  the  following 
circumstances:  The  commissioner  reported  the  sales  of  the  negroes  of 
Charles  ^[ilhouse,  deceased,  to  the  Court  of  equity  for  Barnwell,  at  its 
sitting  succeeding  the  sale.  At  the  instance  of  the  purchaser,  the  ques- 
tion of  Bob's  unsoundness  was  referred  to  the  commissioner;  he  exam- 
ined and  heard  testimony,  and  amongst  other  witnesses,  he  took  the  tes- 
timony of  Dr.  Amoka,  (who,  it  was  alleged,  attended  Bob  in  his  last 
illness,)  and  reduced  it  to  writing.  Upon  the  coming  in  of  the  commis- 
sioner's Report,  the  Court  of  equity  decided  that  it  had  no  jurisdiction 
of  the  question  of  soundness,  and  therefore  refused  to  make  any  order  for 
the  ri'lief  of  the  purchaser.  Under  these  circumstances,  I  thought  the 
witness  harl  not  been  examined  in  a  case  between  the  parties  now"  before 
the  Court,  and  in  which  the  point  now  in  issue  was  involved,  and  that 
therefore,  I  could  not  receive  the  evidence. 

The  defendants  insisted  they  were  entitled  to  the  reply  in  proof  and 


[*255 


512  CHARLESTON,  FEBRUARY,  1842.      VOL.  II.  [*255 

argument.  Tliey  bad  pleaded  on  the  record  non  est  factum,  and  had 
given  notice  in  writing  that  they  wonld  rely  on  the  unsoundness  of  the 
nejrro,  as  a  ground  of  defence.  On  the  trial,  the  execution  of  the  bond 
wa's  admitted  ;  but  I  am  not  aware  that  there  was  any  written  admission, 
other  than  that  which  might  be  implied  from  the  notice  of  defence  predi- 
cated of  the  unsoundness  of  the  negro.  I  held  as  I  did  in  the  Adminis- 
trators of  Gray  vs.  Cottrell,  1st  Hill,  38,  (which  ruling  met  the  appro- 
^,-,f■o-^  bation  of  *the  Court  of  Appeals,)  that  the  reply  in  evidence  and 
"  -J  argument  depended  on  the  question,  who  was  the  actor  on  the  plead- 
ings. The  plea  of  the  general  issue,  non  est  factum,  made  the  plaintiff  the 
actor  ;  and  any  admission  of  the  cause  of  action,  with  that  plea  on  the 
record,  made  it  necessary  for  the  plaintiff  to  read  or  call  for  such  an 
admission,  to  entitle  him  to  recover. 

The  case  was  fully  and  fairly  submitted  to  the  jury,  on  the  question  of 
soundness.  They  found  for  the  i)laintiff.  The  defendants  appeal,  on  the 
annexed  grounds, 

GROUNDS    OF    APPEAL. 

1.  Because  his  Honor  rejected  the  testimony  of  Dr.  Amoka,  a  witness  who 
had  been  examined  in  the  Court  of  Equity  in  a  trial  between  the  same  parties, 
and  in  relation  to  the  same  subject  matter,  whose  testimony  had  hcvn  reduced  to 
writing  by  the  consent  of  counsel,  and  whose  testimony  ought  to  have  been 
admitted  in  the  trial  at  law,  the  witness  being  dead. 

2.  Because  his  Honor  refused  to  the  defendants  the  right  of  reply  in  evidence 
and  argument ;  although  the  defendants,  both  on  the  trial  and  previously,  in 
writing,  (as  part  of  the  pleadings,)  admitted  the  plaintifTs  case,  and  took  upon 
themselves  the  burden  of  the  proof. 

3.  Because  the  verdict,  (on  the  merits,)  was  contrary  to  evidence  and  law. 

Mr.  Bellinger,  for  motion.  1st,  As  to  Amoka's  testimony,  1  Stark,  on  Ev.  280  ; 
2  lb.  2G4.  See  Johnson  vs.  Wideman,  Dud.  Law  Hep.  325.  "It  seems  to  be  a 
general  rule  that  the  depositions  or  evidence  in  a  former  cause  are  never  admissible 
in  evidence,  unless  the  verdict  or  judgment  would  in  itself  be  evidence;"  1  Stark. 
on  Ev.  2i;7.  To  admit  a  deposition  on  the  oral  testimony  of  a  witness  in  a  former 
cause,  it  is  necersary  to  show  that  such  a  cause  or  proceeding  legally  existed,  for 
otherwise  it  would  not  appear  that  the  deposition  was  any  thmg  more  than  the 
mere  voluntary  affidavit  of  a  stranger. 

Mr,  Patterson,  contra.  Ist^roiand,  Three  insuperable  objections  ;  1st,  no  case  ; 
2d,  no  parties  ;  3d,  no  jurisdiction.  1  Stark,  on  Ev.  2G7.  Such  a  cause  must 
^.,._,  have  legally*  existed  ;  12  Vin.  Ab.  Tit.  109,  31,  Storh  vs.  Dcrer.  Deposi- 
"  -'  tions  coram  mm  judice  not  evidence  ;  1  Phill.  on  Ev.  269.  "If  the  suit  in 
equity  be  dismissed  for  the  irregidarity  of  the  complainant,  it  has  been  said  that 
tlio  depositions  in  that  case  cannot  be  read  in  any  fresh  suit.  Thus,  where  a 
devisee  brings  a  bill  of  revivor  on  a  suit  commenced  by  his  devisor,  and  deposi- 
tions ar(!  taken,  and  then  the  cause,  on  the  hearing,  is  dismissed,  because  a  de- 
Ti.see,  claiming  as  a  purcha.ser,  and  not  by  replevin,  cannot  bring  a  bill  of  revivor, 
tho  devisee  will  not  be  allowed,  on  exhibiting  a  new  original  bill,  to  use  tlie  former 
dejiositions  ;  for  in  the  first  cause,  in  which  the  complainant  mistook  his  remedy, 
there  was  no  complaint  regularly  Iwforc  the  court,  and  consequently  there  could 
not  r(!gularly  bo  any  depositions." 

Curia,  per  O'Neai.l,  J.  The  first  grouiul  of  appeal  raises  tlie  ques- 
tion whether  the  depositions  of  Dr.  Amoka,  a  deceased  witness,  were 
admissible  in  evidence.  In  addition  to  the  general  statement  made  in 
the  report,  I  will,  beforn  I  examine  the  question  of  admissibility,  state 
the  view  Chancellor   Dunkin   took  of  the   i)roceeding,  under  which  the 


*257]  COMMISSIONER  IN  EQUITY  VS.  mVhORTER.  513 

depositions  were  taken.  He  said,  "  this  is  not  u  rule  against  the  pur- 
chaser at  the  commissioner's  sale,  requiring  him  to  comply  nitli  the  terms 
of  sale ;  but  it  is  substantially  a  summary  application  on  the  part  of  the 
purchaser,  to  obtain  the  aid  of  the  Court  in  rescinding  a  contract  already 
completed,  and  on  grounds,  which,  if  available  at  all,  would  afford  a 
perfect  legal  defence  to  the  enforcement  of  the  contract.  I  may  add, 
that  if  I  had  taken  a  different  view  of  this  point  of  the  case,  I  should 
certaiidy  have  deemed  it  necessary  to  order  an  issue,  as  the  testimony 
adduced  has  not  enabled  me  to  form  a  satisfactory  opinion. 

I  regard  the  former  order  of  reference  as  merely  an  inquiry  into  the 
facts,  and  the  judgment  of  the  Court  thereon. 

The  facts  disclosed  do  not  appear  to  me  to  make  a  case  for  the  inter- 
position of  the  Court.  The  motion  of  the  purchaser,  Thomas  M'Whorter, 
for  the  re-dclivcry  of  the  bond  and  mortgage,  is  dismissed. 

The  rule  under  which  the  depositions  of  oral  testimony*  of  a  r^^cocn 
deceased  witness  iu  another  cause  is  received  in  a  case  on  trial,  is  '- 
very  well  stated  in  1st  Stark,  on  Ev.  267.  "To  admit  a  deposition  or 
the  oral  testimony  of  a  witness  in  a  former  cause,  it  is  necessary  to  show 
that  such  a  cause  of  proceeding  legally  existed  ;  for  otherwise  it  would 
not  appear  that  the  deposition  was  anything  more  than  the  mere  volun- 
tary affidavit  of  a  stranger."  In  the  same  book,  and  at  the  same  page, 
the  following  test  of  admissibility  under  this  rule  is  given  :  "It  seems  to 
be  a  general  rule,  that  the  depositions  or  evidence  in  a  former  cause  are 
never  admissible  in  evidence,  unless  the  verdict  or  judgment  would  in 
itself  be  evidence."  Looking  to  this  it  would  seem  to  be  i)lain,  that 
when  no  judgment  could  be  given,  that  of  course  the  testimony  would  be 
inadmissible.  In  the  case  in  chancery,  no  judgment  could  be  given,  for 
the  want  of  jurisdiction  on  the  point  (whether  the  bond  should  be  en- 
forced,) now  in  issue  between  these  parties.  Hence,  no  evidence  heard 
in  that  cause,  could  be  evidence  in  this.  It  is,  however,  beyond  all 
controversy,  that  no  cause  ever  legally  existed.  For  an  unauthorized 
inquiry  in  chancery,  and  so  declared  to  be  by  that  Court,  will  not  justify 
the  reception  of  the  depositions  of  a  witness  examined  under  it,  and  who 
has  since  died,  in  a  subsequent  cause  between  the  same  parties.  For, 
when  the  Court  originating  such  an  inquiry  declares  it  to  be  illegal,  it  is 
the  same  as  if  it  had  never  been  made.  The  reference  and  motion  to 
rescind  the  contract,  by  delivering  the  l)ond  and  mortgage  to  the  pur- 
chaser, was  an  attempt  to  try  a  plain  legal  question,  a  question  of  un- 
soundness, arising  originally,  and  not  collaterally,  in  the  Court  of  Equity. 
Tills  was  properly  refused  by  the  chancellor,  and  dismissed  for  want  of 
jurisdiction.  A  proceeding  without  jurisdiction,  is  as  if  none  in  fact  had 
existed. 

In  1st  rhill.  on  Ev.  289,  it  is  stated  to  be  law,  "If  the  suit  in  equity 
be  dismissed  for  the  irregularity  of  the  complainant,  it  has  been  said  that 
the  depositions  in  that  cause  cannot  be  read  in  any  fresh  suit.  Thus, 
when  a  devisee  brings  a  bill  of  revivor  on  a  suit  commenced  by  his  devi- 
sor, and  dejjositions  are  taken,  and  then  the  cause  is  dismissed,  beca^ise 
a  devisee  claiming  as  a  j^uy'chaser,  and  not  by  representation,  cannot 
bring  a,  bill  of  revivor,  the  devisee  will  not  be  ^allowed,  on  ex-  r^ij^rq 
hibiting  a  new  original  bill,  to  use  the  former  depositions  ;  for,  in  '- 
the  first  cause,  in  which  the  complainant  mistook  his  remedy,  there  was 
Vol.  I.— 34 


514  CHARLESTON,  FEBRUARY,  1842.      VOL.  II.  [*259 

no  complaint  regularly  before  the  Court,  and  consequently  there  could 
not  reirnlarly  be  any' depositions."  This  authority  reaches  completely 
the  point  before  us.  For  if,  when  a  bill  is  dismissed  on  account  of  the 
plaintiff's  mistaking  his  remedy,  depositions  taken  in  it  are  inadmissible  in 
a  fresh  suit,  it  would  seem  to  be  clear,  that  depositions  taken  under  a 
rule  of  reference,  which  is  afterwards  declared  to  be  illegal,  cannot,  in 
any  after  case,  be  received  as  evidence.  For,  in  the  language  of  the 
authority,  "  there  was  regularly  no  complaint  before  the  Court,  and  con- 
sequently there  could  not  regularly  be  any  depositions." 

The  second  ground  is  concluded  by  the  authority  referred  to  in  the 
report,  and  by  the  case  of  Johnson  vs.  Wideman,  Dudley's  Law  Rep.  325. 

The  motion  is  dismissed. 

Evans,  Butler  and  Wardlaav,  J  J.,  concurred. 

RicnARDSON,  J.  I  think  the  evidence  of  Dr.  Amoka  was  competent, 
and  therefore  I  dissent. 


THE  STATE  OF  SOUTH  CAROLINA,  )     ^      ., 

-r,  -r\  '   >     io  wit: 

Bakxwell  District,      j 


Thomas  M'Wliorter,  Richard  W.  Walker,  and  William  P.  Walker,  were  sum- 
moned to  answer  to  Alfred  P.  AMrich,  successor  in  office  of  Gasper  J.  Trotti,  Com- 
missioner in  Equity  for  Barnwell,  of  a  plea  of  debt,  that  they  render  unto  him 
the  full  and  just  sum  of  thirteen  hundred  and  forty-six  dollars,  which  to  him  they 
owe,  and  from  him  unjustly  detain,  and  so  forth.  And  whereupon,  the  said 
plaintilf,  by  Patterson,  his  attorney,  complains  that  whereas,  the  said  defendants, 
on  the  thirteenth  day  of  February,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  thirty-seven,  at  Barnwell,  in  the  district  and  State  aforesaid,  by 
their  certain  writing  obligatory,  commonly  called  a  bond,  sealed  with  the  seal  of 
the  said  defendants,  acknowledged  themselves  held  and  firmly  bound  unto  the 
said  Gasper  J.  Trotti,  commissioner  as  aforesaid,  in  the  aforesaid  sum  of  thirteen 
hundred  and  forty-six  dollars,  to  be  paid  to  the  said  Gasper  J.  Trotti,  his  succes- 
sors in  office,  or  assigns,  when  they  should  be  thereunto  afterwai'ds  required. 
Nevertheless,  the  aforesaid  defendants,  although  often  required,  the  said  sum  of 
thirteen  hundred  and  forty-six  dollars  have  not  as  yet  rendered,  but  the  same  to 
the  said  Gasper  J.  Trotti,  as  such  commissioner,  or  to  the  said  plaintiff,  his  succes- 
sor in  office,  refused,  and  still  refuse  to  render;  wherefore,  the  said  plaint ifl',  as 
commissioner  aforesaid,  is  worse  and  hath  sustained  damage  to  the  value  of  one 
hundred  dollars,  and  therefore  he  brings  suit,  and  so  forth.  And  the  said  plain- 
*2601  *'ff  P™fliices  here  in  Court,  the  writing  obligatory  *aforesaid,  which  testifies 
the  debt  aforesaid,  in  the  form  aforesaid ;  the  date  whereof  is  the  day  and 
year  above  written,  and  so  forth. 

PATTERSON,  Plaintiffs  Att'ij. 

Ami  the  said  defendant  saith  that  the  within  supposed  writing  obligatory  is 
not  the  act  and  deed  of  the  said  defendant,  and  of  this  he  puts  himself  on  the 
country,  and  so  forth. 

BELLINGER  &  WIMBISH,  Defendant's  Att's. 

The  plaintiff  will  take  notice  that  the  defendant  admits  the  execution  of  the 
liond,  Mild  under  the  Act  of  Assembly  of  1831,  will  offer  evidence  to  show  that  the 
negro,  (for  wliose  purchase  the  bond  was  given,)  was  diseased  at  the  time  of  sale, 
and  of  no  valm;. 

BELLINGER  &  W.,  DcfcndanVs  xUVs. 

And  the  plaintiff  doth  llie  like. 

PATTERSON,  Plaintljff's  AtVy. 
CLERK'S  OFFICK,  )        I  hereby  certify  that  the  foregoing  are  true  copies  of  the 

JiarmixU  Distrirt  j  declaration,  plea,  notice  and  similiter,  in  the  order  in  which, 
they  stand  on  tlie  original  record. 

ORSAMUS  D.  ALLEN,  C.  C.  P., 
Per  V.  J.  WILLIAMSON. 


^260] 


BECK    VS.    MARTIN  515 


Ann  Beck  vs.  W.  E.  Martin. 


The  general  rale  of  law  is,  that  partners  are  bonnd  by  the  acts  of  each  other ;  and 
where  one  of  a  law  partnership  obtains  the  possession  of  a  letter  (containing  an 
authority  to  take  care  of  the  interests  of  the  plaintiff,)  directed  to  the  other 
partner,  and  acted  under  the  instructions  contained  in  the  letter,  it  was  held, 
that  the  i)laintiff  was  lioiind  by  the  act  of  the  partner,  as  much  so  as  if  he  to 
whom  the  letter  was  directed  had  received  it,  and  acted  upon  it. 

Before  Richardson,  J.,  at  Gillisonville,  Fall  Term,  1841. 

This  was  an  action  of  trover  to  recover  a  negro,  (Richard.) 

Ann  Beck  held  a  mortgage  of  Richard  and  several  other  negroes, 
from  her  brother,  Josiah  Beck.  Col.  Rice,  sheriff"  of  Colleton  district, 
got  possession  of  the  mortgage;  and  having  also  junior ^./a's.  against 
Josiah  Beck,  sold  Richard  at  public  out-cry  ;  and  the  defendant,  W.  E. 
Martin,  became  the  purchaser. 

*The  question  made  was,  whether  the  sale  so  made  precluded  r^^.cfc-i 
the  rights  of  Ann  Beck,  under  the  mortgage,  and  vested  the  title  •- 
to  Richard  in  the  purchaser,  under  the  circumstances  attending  the  sale. 

Ann  Beck  had,  through  her  agent,  Williams,  enclosed  the  mortgage  in 
a  letter  to  Albert  Rhett,  authorizing  him  to  take  care  of  her  interest,  &e. 
Rice,  the  sheriff,  received  this  letter,  took  the  liberty  of  opening  it,  and 
having  so  got  possession  of  the  mortgage,  sold  Richard,  under  it,  on 
sale-day  in  April,  1840.  This  happened  during  Court  at  Walterborough. 
But  Albert  Rhett  did  not  arrive  till  the  day  after,  and  knew  not  of  the 
agency  confided  to  him  by  Ann  Beck,  before  his  arrival. 

In  the  mean  time,  his  brother  and  professional  partner,  Edmund  Rhett, 
had  arrived  on  sale-day,  and  hearing  of  the  sale  intended  under  the 
mortgage,  got  possession  of  it  from  Rice,  and  also  of  the  letter  to  Albert 
Rhett,  and  forbid  the  sale,  Wm.  Branch,  deputy-sheriff,  stated,  that 
after  Richard  had  been  bid  off,  Edmund  Rhett  directed  Rice  to  tender 
the  bill  of  sale  to  the  purchaser,  and  demand  the  money.  This  statement 
was  altogether  denied  by  Edmund  Rhett.  Rice,  however,  made  the  bill 
of  sale,  and  received  the  purchase  money.  This  summary  may  perhaps 
be  sufficient,  as  the  grounds  of  appeal  turn  chiefly  upon  the  charge  to  the 

jury- 

The  presiding  Judge  charged  the  jury,  that  the  rights  of  Ann  Beck 
could  not  be  affected  by  the  sale  so  made  by  Rice  ;  that,  as  her  agent, 
Albert  Rhett  did  not  even  know  of  his  agency,  till  after  the  sale ; 
Edmund  Rhett  could  not  have  been  his  sub-agent,  under  any  implication  ; 
that  Edmund  Rliett  being  the  professional  partner  of  Albert  Rhett,  did 
not,  of  itself,  authorize  him  to  act  in  the  place  of  his  absent  brother,  so 
as  to  affect  the  rights  of  Ann  Beck,  even  if  he  had  directed  the  bill  of 
sale  to  be  tendered,  &c.,  as  stated  by  Branch.  The  agency  was  to  Albert 
Rhett  alone. 

The  plaintiff  ought,  therefore,  to  recover,  and  the  defendant  be  left  to 
his  own  resort  to  Rice,  who  had  assumed  the  agency  without  authority. 

The  jury  found  for  plaintiff,  and  the  defendant  appeals,  on  the  grounds  : 
*1.  Because  his  Honor  charged  that  the  sheriff  was  not  authorized  to  pogo 
sell  under  the  mortgage.  '- 

2.  Because  his  Honor  charged  that  an  agent  cannot  appoint  a  sub-agent. 


516  CHARLESTON,  FEBRUARY,  1842.      TOL.  II.  [*262 

3.  Because,  although  it  was  proved  that  Messrs.  E.  &  A.  Rhett  were  partners 
in  business,  his  Honor  charged  that  Mr.  Ed.  Rhett  could  not  confirm  the  sale, 
because  the  mortgage  had  been  enclosed  in  a  letter  directed  to  Mr.  Albert 
Rhett. 

4.  Because  his  Honor  charged  that  a  mortgage  sent  to  a  lawyer  was  not  a 
professional  matter,  but  was  private  business. 

.0.  Because  if  the  sheriff  proceeded  under  mistake,  it  was  caused  by  the 
plaintiff's  agent,  and  she  is  bound. 

6.  Because  a  purchaser  is  not  bound  to  inquire  into  the  regularity  of  a  sale, 
when  he  sees  avendor  in  possession  of  a  legal  instrument. 

7.  Because  the  verdict  was,  in  other  respects,  contrary  to  law  and  the  evidence. 

W.  F.  UnUon,  for  tte  motion,  said  : 

1.  A  mortgage  sent  to  a  lawyer  is  professional  business.  Tlie  profits  arising 
from  such  business  is  considered  a  part  of  the  partnership  profits  ;  that  it  is 
directed  to  one  partner  instead  of  the  fii-m,  does  not  alter  the  question.  It  was 
proved  E.  h  A.  Rhett  were  partners  in  Walterborough ;  that  Ed.  Rhett  con- 
firmed the  sale  by  Rice,  and  his  connexion  with  his  brother  made  him  Miss 
Beck's  agent,  and  his  confirmation  was  the  confirmation  of  his  jjrincipal. 

2.  A  party  purchasing  is  not  bound  to  inquire  into  the  regularity  of  the  pro- 
ceeding, if  he  sees  the  vendor  in  possession  of  a  legal  instrument.  So  of^\  fa. 
1  Bail.  512  ;  why  not  of  a  mortgage  ? 

3.  A  mistake  occasioned  by  a  party's  agent  is  binding  on  the  party ;  10  B.  & 
C.  75.5  ;  2  Bay,  90,  112;  2  M'C.  R.  251.  If  there  is  any  mistake,  it  was  occasioned 
by  Miss  Beck'  agent,  Mr.  Rhett. 

4.  Miss  Beck's  agent  stood  by,  and  did  not  forbid  the  sale  until  the  negro  was 
bid  oflF.     She  is  bound  ;  1  N.  &M'C.  334. 

Colcoch,  contra. 

*9fi^1  "^  Curia,  ^9er  Evans,  J.  It  appears  from  the  report  of  this 
*"  -■  case,  that  the  presiding  Judge  charged  the  jury  that  "  Edmund 
Rhett's  being  the  professional  partner  of  Albert  Rhett,  did  not  of  itself 
autliorize  him  to  act  in  the  place  of  his  absent  brother,  so  as  to  affect 
the  rights  of  Ann  Beck,  even  if  he  had  directed  the  bill  of  sale  to  be 
tendered,  &c.,  as  stated  by  Branch."  The  agency  was  to  Albert  Rhett 
alone.  The  correctness  of  this  as  a  legal  proposition,  is  brought  in 
question  by  the  grounds  of  appeal,  and  it  iDCcomes  the  duty  of  this  Court 
to  decide  it.  The  business  confided  by  William's  letter  to  Albert  Rhett, 
was  to  take  care  of  the  plaintiff's  interest  against  Beck's  creditors.  This 
he  could  only  do  by  ascertaining  what  her  rights  were,  according  to  law, 
and  then  decide  what  course  would  best  protect  and  secure  them.  Her 
rights  were  in  collision  with  the  creditors  of  Beck  ;  and  to  decide  what 
these  rights  were,  as  well  as  liow  they  were  to  be  protected  and  secured, 
were  questions  requiring  legal  knowledge  to  decide  and  determine.  The 
business,  therefore,  committed  by  the  plaintiff  to  Mr.  Albert  Rhett,  was 
one  which  had  connection  with  his  professional  em})loyment ;  and  if,  in 
the  exercise  of  the  authority  thus  committed  to  him,  he  had  ordered  the 
Bale  of  tiic  negro,  or  had  received  tlie  money  afterwards,  in  confirmation  of 
the  sale,  there  would  be  but  little  doubt  that  the  plaintiff  would  have  been 
bound.  Assuming,  therefore,  (and  I  think  there  is  no  reasonable  ground 
to  doubt  it,)  that  the  business  committed  by  William's  letter  to  Mr. 
All)ert  Rhett,  was  professional,  is  not  he,  and  consequently  his  principal, 
bound  by  the  act  of  Mr.  E.  Rhett,  the  professional  partner  of  Albert 
Rhett  ?  The  general  rule  is,  that  partners  are  bound  by  the  acts  of  each 
other,  in  all  matters  within   the  scope  of  the  partnership  business.     It  is 


♦263] 


BECK    VS.    MARTIN.  517 


on  the  principle  that  the  act  of  one  is  the  act  of  both  ;  that  each  agreed, 
on  the  formation  of  the  partnersliip,  that  the  other  should  act  for  hiin  in 
all  matters  connected  with  their  partnership  business.  The  acts  of  each 
are  the  acts  of  both,  and  neither  is  at  liberty  to  disaffirm  what  the  other 
does.  In  this  matter,  therefore,  the  act  of  E.  Rhett  may  be  considered 
as  the  act  of  Albert  Rhett.  If  a  plaintiff  should  write  a  letter  of  in- 
struction to  one  of  a  law  copartnership,  directing  the  commencement 
*or  prosecution  of  a  suit,  and  the  letter  should  come  into  the  r;(cr)/%^ 
hands  of  the  partner,  who  should  commence  the  suit  without  '- 
consulting  the  one  to  whom  the  letter  was  directed,  could  the  act  be  dis- 
affirmed by  either  the  principal  or  the  other  partner,  unless  it  should 
appear  that  the  power  was  specially  and  exclusively  delegated  to  the  one 
to  whom  the  letter  was  addressed  ?  Or  if  a  man  in  the  country  should, 
by  letter  addressed  to  one  of  a  firm  in  the  brokerage  or  commission  busi- 
ness, direct  the  purchase  or  sale  of  some  article  of  property,  could  not 
another  partner,  in  the  absence  of  the  one  to  whom  the  letter  was 
addressed,  cCFect  the  sale  or  purchase,  so  as  to  bind  the  principal  ?  It 
can  hardly  be  denied  the  plaintiff  would  have  been  bound  by  the  acts  of 
Albert  Rhett ;  and  by  the  very  nature  of  a  partnership,  the  acts  of 
Edmund  are  the  acts  of  Albert  Rhett,  by  which  he  is  as  much  bound  as  if 
he  had  acted  himself  If,  therefore,  Mr.  Edmund  Rhett  did  authorize  or 
afiirra  this  sale,  it  seems  to  me  the  plaintiff  is  bound  by  it.  I  do  not  say 
he  did  any  such  act.  I  sliould  rather  conclude  from  the  testimony,  he  did 
not ;  l)ut  these  are  matters  which  should  be  passed  on  by  the  jury  and 
as  the  presiding  Judge  in  his  view  of  the  law  thought  them  immaterial,  a 
majority  of  this  Court  are  of  opinion  a  new  trial  should  be  granted,  and 
it  is  so  ordered. 

Butler  and  "Wakdlaw,  JJ.,  concurred. 

Richardson,  J.,  dissenting. — The  motion  for  a  new  trial  depends 
upon  this  question,  was  the  Judge  correct  in  charging  that  the  rights  of 
Ann  Beck  could  not  be  affected  by  the  acts  of  Edmund  Rhett  ?  It  was 
assumed  that  Edmund  Rhett  had  not  been  made  her  agent  by  the  letter 
written  to  Albert  Rhett,  although  Albert  and  Edmund  Rhett  were 
partners  at  law.  This  question  is  new,  and  requires  consideration.  The 
letter  to  Albert  Rhett  was  in  these  words  :  "  On  the  suggestion  of  Mr. 
Beck,  I  enclose  a  mortgage  of  some  negroes  of  his  to  Miss  Beck.  My 
purpose  is,  to  enable  you  to  protect  her  interests  from  all  Beck's 
creditors."  This  was  the  power  of  attorney.  At  the  time  of  the  sale, 
Albert  Rhett  did  not  even  know  of  such  a  letter,  and  of  course  Edmund 
Rhett  could  not  have  acted  with  his  privity.  He  must,  then,  have  been 
a  mere  volunteer,  *nnless  he  could  himself  derive  the  rights  of  an  ^;^9oc 
agent  from  the  letter  to  Albert  Rlictt,  and  had  authority  from  it  ^  " 
to  ratify  the  sale  of  Richard  which  he  had  forbidden  in  the  first  instance. 

But  there  are  many  objections  to  such  a  construction  in  favor  of 
Edmund  Rhett's  agency  : 

1st.  The  authority  was  in  writing,  and  confined  to  Albert  Rhett;  and 
he,  not  even  knowing  of  it,  could  not  have  accepted  it.  It  follows  that 
no  one  could  have  had  the  right  to  assume  his  agency,  or  acceptance, 
when  neither  existed. 

2dly.  It  was  a  special  agency  under  Mr.  Williams,  the  general  agent 


518  CHARLESTON,  FEBRUARY,  1842.      YOL.  II.  [*265 

of  Ann  Beck,  and  ought  to  be  construed  strictly  and  confined  to  the 
special  agent  named  by  the  general  agent.  Xo  one  else  ought  to  impli- 
cate him  or  his  principal. 

3d.  It  was  an  agency  ia  fact,  and  not  to  an  attorney  at  law  to  do 
professional  business,  in  its  terms  to  protect  her  interests  from  all  Beck's 
creditors. 

Tiiis  could  not  give  the  power  to  sell  or  convey  away  the  property. 
It  was  to  protect  and  guard  it  from  being  sold  at  all,  in  order  to  protect 
her  right  and  title  to  the  negroes,  or  to  interpose  her  prior  claim  to  all 
creditors. 

It  is  the  same  as  if  to  protect  her  interests  in  a  tract  of  land,  or  piece 
of  furniture,  which  would  be  neither  to  sell  nor  destroy  her  title,  ])ut  to 
protect  it.  This  may  be  a  very  strict  construction,  but  the  agency  had 
no  more  of  a  ])rofessioual  law  character,  than  if  it  had  been  to  pay  her 
taxes,  or  to  look  to  her  interest  in  a  consignment  of  goods,  claimed  by 
another  ])orson,  or  to  superintend  her  plantation  or  negroes. 

A  lawyer  acts  often  as  an  agent  in  fact ;  and  the  rule  that  the  principal 
cannot  be  bound,  unless  by  his  own  agent,  acting  within  the  authority 
delegated,  must  be  preserved,  else  we  infract  the  first  principle  of  the  law 
of  ])rincipal  and  agent,  and  make  one  man  bound  by  the  acts  of  another, 
without  his  own  consent. 

It  is  upon  this  strict  view,  that  I  question  whether  Albert  Rhett 
Inmself  could  have  ratified  the  sale  made  hj  sheriif  Rice,  and  kept  within 
the  special  written  agency  of  William's  letter.  How  could  such  an  act 
♦  Ofifil  P^'^^c^'t  1'^'^  interests?  *But  I  feel  clear  that  Edmund  Rhett  had 
"  -'  no  agency  whatever.  But  assume,  for  a  moment,  that  the  power 
to  sell  tlie  negro  was  given,  and  also,  that  the  professional  partner  of 
Albert  Rhett,  although  unknown  to  Ann  Beck,  became  also  her  agent, 
by  construction  of  law — this  would  be  going  very  far  by  implication, 
assuredly. 

But,  shall  we  go  further,  and  say  that  the  two  Rlietts  were  not  only 
her  agents,  but  her  Joint  and  several  agent  ?  Where  can  we  find  neces- 
sity or  reason  for  this  imi)lication  ?  If  a  stranger  must  be  introduced  by 
legal  intendment,  why  go  another  step,  and  say  such  stranger  may  act 
witlioiit  the  advice,  consent,  or  knowledge,  or  even  before  the  acceptance 
of  Albert  Rhett,  the  only  agent  practically  confided  in  and  named  by  the 
principal?  Should  we  not  rather  say,  under  any  construction,  that 
Edmund  Rhett  could  be  no  more  than  nnWvd  Jointhj,  and  not  severally, 
witli  Albert  Rliett,  and,  therefore,  his  several  or  individual  acts  could 
not  afl'oct  the  rights  of  Ann  lieek  ?  Under  any  other  and  further  impli- 
cation, she  Would  be  deprived  of  her  rights  by  law,  without  her  own 
consent,  privity,  or  any  confidence  apparent  from  her  letter  of  attorney 
to  All)ert  Riiett. 

The  im|ilicalion  that  o])erates  so  strongly,  should  be  unavoidable,  and 
from  nmiuostionable  pi-eniises,  in  order  to  force  us  to  such  a  conclusion, 
by  mere  const rnetion. 

I  need  scarcely  here  do  more  than  refer  to  the  settled  doctrine  of  joint 
agencies. 

.Judge  Story  on  Agency,  p.  44,  sums  up  the  doctrine,  as  made  by 
adjudged  cases,  thus:  "Where  an  authority  is  given  to  two  or  more 
persons  to  do  an  act,  the  act  is  valid  to  bind  the  principal  only  when  one 


^266] 


BECK    VS.    MARTIN.  519 


of  tliera  concur  in  doing  it.  For  tlie  authority  is  construed  strictly,  and 
the  power  is  understood  to  be  joint,  and  not  several,"  &c.  "  So,"  he 
continues,  "if  an  authority  is  given  to  two  persons  jointly  to  sell  the 
property  of  the  principal,  one  of  them  cannot  separately  execute  the 
authority,"  "Indeed,  so  strictly  is  the  authority  construed,  that,  if  it  be 
given  to  three  persons  jointly  and  severally,  two  cannot  properly  execute 
it ;  but  it  must  be  done  by  one  or  l)y  all."  "  However,  the  rule  of  inter- 
pretation is  not  so  rigid  as  to  overcome  the  apparent  intentions  of  the 
party,  if  the  words  can  be  so  construed  as  to  reach  the  case.  Thus,  if  an 
*authority  be  given  A.  B.,  or  either  of  them,  a  joint  or  several  r^nr.^ 
execution  will  be  valid."  L   "  "' 

It  is  plain  from  this  exposition,  that  powers  to  two  or  more  persons, 
are  strictly  and  always  joint,  unless  literally  or  unquestionably  several 
from  their  intent  and  necessity.  There  is  very  little  room  for  construc- 
tive intendments  in  the  law  of  agencies.  But  there  is  a  caution  in  the 
doctrine  in  dealing  with  the  rights  of  the  absent,  that  is  most  wholesome, 
and  in  just  accordance  with  that  of  the  statute  against  frauds,  to  suffer 
no  man  to  be  made  liable  for  another's  debt  or  default,  except  upon  his 
own  written  assumption.  IIovv  drictJy  joint,  then  should  be  the  agency 
of  any  man  who  is  joined  by  implication  to  the  named  agent.  Look  into 
the  facts  of  the  case.  Rice  takes  the  letter  to  Albert  Bhett  from  the 
post  office,  assumes  the  friendly  liberty  of  opening  it,  and  proceeds  under 
the  mortgage  he  found  enclosed.  The  transactiou  reaches  the  ears  of 
Edmund  Rhett  at  the  moment  of  the  sale.  He  promptly  forbids  the 
sale  as  Albert  Rhett  is  absent.  But  according  to  the  witness  Branch,  he 
afterwards  told  the  sheriff  to  tender  the  bill  of  sale  and  demand  the 
money.  The  sheriff  does  so,  delivers  the  negro,  and  keeps  the  money 
for  his  own  security.  But  under  the  doctrine  just  laid  down,  I  ask,  in 
what  one  link  in  this  series  of  gratuitous  acts,  is  Ann  Beck  to  be  held  as 
assenting  or  implicated  ?  There  can  be  no  reproach  to  the  purchaser 
whatever.  He  must  stand  a  suit  at  law,  that  he  may  recover  over 
against  Rice.  But  his  right  of  property  depends  upon  the  assent  to  the 
sale  by  Ann  Beck,  as  indicated  by  her  power  of  attorney,  when  united 
with  such  gratuitous  acts  of  other  persons.  It  is  in  those  acts  that  I 
can  perceive  no  influence  to  alter  her  right. 

She  seems  as  little  implicated  in  the  whole  transaction,  as  if  her  agent, 
Williams,  had  never  written  the  letter  to  Albert  Rhett,  who  (Rhett) 
repudiated  the  sale  the  moment  he  heard  of  it,  although  he  uttered  no 
reproach  against  Rice  for  opening  the  letter.  And  I  take  occasion  here 
to  state,  that  I  never  witnessed  a  trial,  notwithstanding  its  contradictions, 
in  which  all  parties  were  more  free  from  personal  or  any  unpleasant 
allusions. 

As  a  majority  of  the  Court  think  differently  from  me,  *my  r^^r>c> 
impressions  of  the  power  of  attorney  however  strong  must  be  L  "^ 
mistaken.  But  as  the  point  is  new  and  peculiar  I  will  add  a  word  more, 
on  the  authority  of  decided  cases.  I  can  find  none  finally  adjudged,  so 
as  to  be  of  express  authority.  But  in  that  of  Edmonatoii  ar/ainst 
Wri(/hf,  1  Campbell,  p.  88,  we  may  find  a  decision  of  Lord  Ellen- 
borough,  of  some  importance  still. 

Wright  had  negroes  in  Jamaica.  Mr.  Lecky,  Edmondstou's  partner, 
was  his  attorney  on  record,  who  had  the  management  of  the  negroes ; 


520  CHARLESTON,  FEBRUARY,  1842.      VOL.  II.  [*268 

the  negroes  were  shipped  to  Georgia  by  order.  But  the  captain  not 
haviiig'a  permit,  the  negroes  were  forfeited.  To  release  them,  Edmond- 
ston  ])aid  £1,200,  as  a  compensation,  which  he  sought  to  recover  against 
"Wriglit.  The  question,  it  will  be  seen,  was,  whether  the  general  powers 
of  Lecky  could  be  exercised  by  his  partner,  Edmondston.  Lord  Ellen- 
borough  ruled  "that  it  was  a  voluntary  payment,"  and  held,  that  the 
plaintiff  (Edmondston,)  could  possess  no  general  authority  as  partner  of 
Lecky,  zi-/io^-e  powers  as  attorney  on  record,  were  clearly  incommuni- 
cable ;  and,  as  manager  of  the  gang  of  negroes,  he  (E.)  was  "functus 
officio,^'  after  delivering  them  on  board  the  ship.  Verdict  for  defendant. 
Now  then,  for  the  general  agent,  read  Albert  Rhett,  and  for  his  partner, 
Edmondston,  read  Edmund  Rhett,  and  we  may  say,  with  the  same 
reason,  that  Albert's  powers  were  "clearly  incommunicable"  to  Edmund; 
but  communicate  them  and  they  are  not  still  joint  powers.  But  the  case 
before  us  is  stronger,  because  Albert  Rhett  could  not  physically  or 
morally  have  communicated  his  powers,  as  he  had  not  accepted  and 
knew  not  of  their  existence,  until  after  the  sale,  and  after  the  supposed 
exercise  of  his  agency  by  Edmund  Rhett.  But  ought  not  the  opposite 
side  be  required  to  show  the  authority  for  his  claim  to  such  an  exception 
in  the  law  of  agency  ?  And  are  we  not  then  with  too  little  reason, 
opening  a  new  and  wide  way  for  the  entrance  of  imputed  agencies  ? 
And  should  we  not  do  it  at  least  with  these  qualifications,  that  it  can 
only  follow  the  acceptance  by  the  named  partner  ?  And  then  we  build 
joint,  and  not  several  agency.  If  so,  the  verdict  for  Ann  Beck  is  right. 
onQ:(.-|  And  I  must  be  allowed  to  repeat  now,  before  Albert  *Rhett 
-^  personally  accepted,  and  thereby  created  the  agency  to  the  co- 
partnership, no  agency  could  arise. 

"Why  such  an  agency  belongs  to  the  profession  of  the  law,  so  as  to  be 
translated  to  Edmund  Khett,  by  the  letter  falling  into  his  hands  ;  or  how, 
after  it  had  been  translated  to  him,  it  became  in  his  hands  both  a  joint 
and  several  agency,  I  cannot  percieve. 

In  a  word  of  common  sense — how  a  series  of  liberties  taken,  and  of 
trespasses  done,  by  the  sheriff,  when  afterwards  interwoven  with  the 
hasty  interference  of  Edmund  Rhett,  on  account  of  the  apparent  agency 
of  his  Ijrother,  could  divest  the  plaintiff  of  her  rights,  does  not  strike  my 
understanding.  Docs  not  the  gratuitous  character  in  the  beginning  fol- 
low the  transaction  throughout,  and  keep  the  whole  estranged  from  the 
plaintiffs  ?  I  would,  therefore,  support  the  verdict  upon  the  established 
strict  construction  of  agencies,  and  would  not  the  less  support  it  "  in 
odium  spolialoris  ;'^  and  so  let  the  sheriff,  who  began  and  ended  the 
trespass,  respond  in  damages  to  the  purchaser  of  the  negro, 

O'Neall,  J.,  concurred  with  Richardson,  J. 


'270]  BRAVEBOY   Clils,    COCKFIELD.  521 


*M.  Braveboy  ads.  AV.  J.  Cockfield.  [*270 

Where  a  prosecution  against  a  party  never  legally  existed,  lie  cannot  maintain  an 
action  for  malicious  prosecution. 

Tried  before  Mr.  Justice  Earle,  at  King's  Tree,  Fall  Term,  1841,  whose 
report  of  the  case  is  as  follows  : 

This  was  au  action  on  the  case  for  a  malicious  prosecution.  On  the 
information  of  the  defendant,  a  warrant  was  issued  by  a  magistrate  for  the 
arrest  of  the  plaintiff.  The  information  embodied  in  the  warrant  was, 
that  "  the  plaintiff  feloniously  did  take,  steal,  and  carry  off,  his  (defend- 
ant's) negro  boy  Tobe  ;  and  did,  with  force  and  violence,  carry  off  his 
said  I)oy,  out  of  the  said  district."  The  i)laintiff  was  arrested  in  Marion 
district,  where  the  warrant  was  countersigned  by  another  Justice.  The 
warrant  was  issued  on  the  12th  of  August,  1839,  and  the  plaintiff'  entered 
into  recognizance  on  the  next  day.  Tlie  defendant,  in  person,  applied  to 
the  justice,  and  made  his  complaint,  that  his  negro  had  been  taken  off 
while  he  was  at  meeting ;  and  that  ho  thought  the  persons  he  named,  of 
whom  defendant  was  one,  had  done  it,  and  he  wanted  proper  process 
against  them.  The  justice  thought  it  a  case  of  felony.  He  read  the 
affidavit  to  the  defendant  before  he  was  sworn.  He  delivered  the  war- 
rant, when  issued,  to  the  defendant  and  a  constable,  who  went  away  with 
it.  Defendant  himself  carried  the  warrant  to  the  constable,  Yarborough, 
who  had  it  backed,  (countersigned)  and  made  the  arrest  in  Marion.  To 
several  persons,  after  the  warrant  was  taken  out,  the  defendant  said  he 
did  not  believe  plaintiff  was  actually  concerned  in  the  carrying  away  of  the 
negro,  but  that  he  was  along,  and  aided  the  Burketts,  who  were  the 
other  parties  charged.  The  prosecution  was  abandoned  at  the  first 
terra  ;  no  bill  was  given  out,  and  the  plaintiff  was  discharged.  A  civil 
action  was  brought  in  Marion  for  the  negro,  which  resulted  in  favor  of 
the  defendant.  When  the  defendant  delivered  the  warrant  to  Yarbo- 
rough, and  it  was  backed  by  Justice  Askins,  in  Marion,  he  said  he  would 
not  be  in  Cockfield's  place  for  half  he  was  worth.  I  refused  a  motion 
for  nonsuit. 

*It  was  proved  on  the  defence,  that  the  negro  was  carried  off  r.^^w, 
from  the  defendant's  residence  in  August,  1839,  in  the  day  time,  L  -" 
but  privately,  when  the  family  were  absent  from  home.  The  plaintiff 
came  first  to  the  house,  and  called  Tobe  with  him  to  the  fence,  and 
incpiired  if  his  master  was  at  home,  and  conversed  with  him  some  time ; 
the  plaintiff  then  rode  along  the  fence,  and  called  another  of  the  negroes 
to  him  at  the  fence,  and  had  some  conversation  with  him.  This  occurred 
about  twelve  o'clock.  The  witness  who  proved  these  facts,  with  the  wife 
of  the  defendant,  then  left  the  place ;  and  in  the  afternoon  of  the  same 
day,  i)erliaps  in  an  hour,  the  negro  Tobe  was  carried  off  by  two  men, 
named  Burkett,  father  and  son.  The  defendant,  who  was  at  church  in  the 
neighl)orhood,  was  sent  for,  and  the  foregoing  facts  communicated  to 
him.  He  went  immediately  to  make  liis  complaint  to  the  justice  ;  and  it  was 
proved  by  a  witness  sworn  for  the  defence,  that  while  he  was  at  church, 
the  plaintiff  had  been  at  his  house,  talking  with  the  negro  ;  that  the  Bur- 
ketts had  afterwards  carried  him  away ;  and  that  the  plaintiff  had  crossed 
the  river  with  them.     He  left  the  matter  mostly  to  the  justice,  and  ex- 


5'2'2  CHARLESTON,  FEBRUARY,  1842.      VOL.  II.  [*2T1 

pressed  his  regret  that  tlie  plaintiff,  with  whom  he  had  always  been 
friendly,  should  be  charged  with  such  a  thing.  He  complained  that  his 
negro  "had  been  taken  away,  or  stolen  and  carried  off,  and  demanded 
redress  according  to  the  course  of  law  ;  he  wanted  to  recover  him  ;  but 
according  to  another  witness,  he  said  the  plaintiff  had  aided  the  Burkett's, 
who  had  done  it ;  that  he  had  been  seen  there,  &c.  It  w^as  fully  proved 
that  the  defendant  soon  became  satisfied  that  the  plaintiff  should  not  have 
been  included  in  the  prosecution,  or  regretted  that  he  had  been  ;  and  he 
did  what  he  could  to  atone  for  it.  He  excused  himself  on  the  ground 
that  he  was  informed  by  his  wife  and  sister,  that  the  plaintiff  had  been  at 
his  house  the  same  day,  talking  with  Tobe,  and  that  he  had  crossed  the 
river  with  them  the  same  day  ;  and,  therefore,  he  thought  that  the  plaintiff 
knew  of  it.  There  was  other  proof  also,  that  the  Burketts  had  long  before 
set  up  a  claim  to  this,  and  other  negroes,  in  possession  of  the  defendant; 
had  gone  to  his  house  to  make  a  demand  ;  and  that  he  replied,  that  they 
*9'-9-l  li'^d  no  sort  of  claim,  and  forev/arned  them  from  attempting*  to 
'"'-'  take  them.  The  defendant  justified  himself  by  saying  he  had  the 
advice  of  two  justices,  who  thought  it  stealing  ;  but  afterwards,  on  getting 
other  advice,  found  he  was  wrong,  and  did  all  he  could  to  stop  the  prose- 
cution. I  submitted  the  cause  to  the  jury  with  ample  instructions.  I  did 
not  think  there  was  probable  cause  for  the  prosecution,  if  Burkett  had  a 
bona  fide  claim  to  the  negro,  known  to  the  defendant,  and  had  taken  him 
in  the  assertion  of  that  claim.  I  submitted  to  them,  if  they  found  the 
affirmative  of  those  propositions  for  the  plaintiff,  then  he  should  have  a 
verdict.  If  the  claim  of  the  Burketts  had  been  a  mere  fraudulent  pretence 
to  seize  the  negro,  so  as  to  avoid  the  charge  of  felony,  and  they  had  carried 
him  off  beyond  the  reach  of  the  defendant,  there  would  have  been  good 
cause  of  prosecution  against  them  ;  and  I  thought  the  proof  would  war- 
rant the  proceeding  in  that  case  against  the  plaintiff.  I  did  not,  in  any 
view,  consider  it  a  case  for  heavy  damages,  and  the  jury  found  for  the 
plaintiff  twenty  dollars. 

From  this  verdict  the  defendant  appeals,  and  moves  that  the  same  may  be 
set  aside,  and  a  nonsuit  ordered,  on  the  following  grounds  : 

1.  Tliat  it  appeared  by  the  pliviutifl''s  evidence,  that  he  was  never  lawfully 
arrestod,  nor  even  for  one  instant  detained,  on  the  prosecution  of  the  del'endant. 

2.  Tliat  the  defendant  having  stated  to  the  magistrate  the  facts  and  ciicum- 
stancos  (in  which  his  complaint  was  founded,  which  facts  and  circumstances 
the  plaintiff  did  not  attempt  to  disprove,  or  even  deny,  the  magistrate,  and  not 
the  ilHterate  defendant,  is  responsible  for  the  institution  of  a  prosecution  for 
felony,  if  tiioso  facts  and  circumstances  did  not  warrant  such  a  prosecution. 

3.  That  tiie  plaintiff  wholly  failed  to  prove  the  want  of  probable  cause  ;  and 
all  the  evidence  produced  by  him  on  that  point,  went  directly  to  show  the 
existence  of  sufficient  reasonable  and  j)robable  cause  to  justify  a  prosecution. 

4.  I'liat  tliore  was  no  evidence  whatever  of  malice  ;  the  existence  of  which 
was  in  fact  wlidlly  disproved  by  the  plaintiff's  own  witnesses. 

*273l  *''^h.)ul(l  the  motion  for  a  nonsuit  fail,  the  defendant  then  moves  for  a 
'  J  new  IridI,  on  the  same  grounds,  all  of  wliich,  so  far  as  they  depended  on 
evidence,  were  incontroverlibly  establisiied  by  the  evidence  introduced  on  the 
part  of  the  defendant;  and  the  jury  were  bound  to  find  in  couformily  to  the 
law  aiijdicalde  to  it. 

And  in  .support  of  the  motion  for  a  new  trial,  the  defendant  will  rely  upon 
the  fiirtlier  ground,  that  the  verdict  was  without  evidence,  against  evidence, 
and  contrary  to  law. 

Bailey,  for  the  motion.     Ilarllee,  contra. 


[*2U 


♦273]  BRAVEBOY    culs.    COCKFIELD,  523 

Curia,  per  O'Neall,  J.  I  tliink  the  motion  for  nonsuit  ought  to 
have  been  granted  on  two  grounds.  1st.  Tiicre  was  no  legal  arrest  of 
the  ])resent  plaintiir,  to  answer  the  carge  of  negro  stealing.  If  the  war- 
rant had  been  pro[)erly  countersigned  by  Justice  Askin,  and  the  constable 
of  Williamsburg  had  been  duly  authorized  to  execute  it,  I  think  it  would 
have  been  sufBcient.  But  the  instrument  preceding  the  justice's  signa- 
ture on  the  back,  is  anything  else  than  countersigning  or  authority  to 
execute  the  warrant.  The  words  used  are  plain  English,  and  must  be 
understood  according  to  their  meaning.  They  give  a  license  from  Mr. 
Justice  Askin  to  constable  Yarborough,  "  to  rest  and  remain"  in  Marion 
district.  It  may  be,  the  w^ords  were  intended  to  authorize  an  arrest  and 
detention,  but  they  certainly  have  no  such  appropriate  meaning,  and  we 
have  no  right  to  give  it  to  them,  from  the  belief  that  they  were  igno- 
rantly  used,  (a)  Public  officers  using  plain  English  words  ought  to  be 
supposed  to  understand  their  meaning.  The  defendant  and  constable 
Yarborough  may  be  liable  for  false  imprisonment,  in  arresting  the  plain- 
tiff without  warrant ;  but  the  defendant  cannot  be  liable  in  malicious 
prosecution,  when  the  prosecution  never  legally  existed.  The  plaintiff  is 
uot  helped  by  the  defendant's  recognizance  to  prosecute,  or  the  plaintiff's 
to  appear  and  answer;  neither  of  them  are  appropriately  conditioned  as 
papers  on  the  criminal  side  of  the  Court,  they  apparently  relate  to  a  case 
between  party  and  party. 

2d.  I  think  there  was  proof  of  "abundant  probable  *cause." 
To  come  understandingly  to  a  just  conclusion,  it  is  necessary  to 
understand  what  is  probable  cause.  Any  thing  which  will  create  in  the 
mind  of  a  reasonable  man  the  belief  that  a  felony  existed,  and  that  the 
party  charged  was  in  any  way  concerned  in  it,  is  probable  cause.  The 
mere  letting  fall  a  prosecution  does  not  raise  an  implication  of  a  want  of 
probable  cause.  The  only  cases  where  that  is  implied,  are  when  the 
grand  jury  find  no  bill,  or  the  defendant  is  acquitted  by  the  petit  jury, 
and  the  presiding  judge  orders  a  copy  of  the  indictment,  (i)  From  the 
statement  in  the  report,  it  would  seem  that  the  plaintiff  relied  on  "the 
letting  fall  the  prosecution"  as  evidence  of  want  of  probable  cause.  This 
was  not  enough.  But  we  would  not  now  nonsuit  the  plaintiff  on  this 
ground,  if  iu  the  progress  there  was  a  semblance  of  a  want  of  probable 
cause  shown.  But  it  was  plain  there  was  not.  In  the  absence  of  the 
defendant,  one  of  his  negroes  was  taken  privately  out  of  his  plantation, 
by  men  who  pretended,  but  who  in  point  of  fact  had  no  claim  to  him. 
The  plaintiff  was  seen  before  the  negro  was  taken  off,  talking  privately  to 
him,  and  afterwards  to  another.  The  same  day  he  was  seen  crossing  the 
river  with  the  men  who  took  the  negro  away.  The  defendant  stated 
these  facts  to  tlie  justice,  who  thought  the  present  jjlaintiff  and  the  Bur- 
ketts  (who  carried  off  the  negro,)  liable  to  the  charge  of  negro  stealing, 
and  so  advised  the  defendant.  After  this  statement  who  would  hesitate 
in  saying  that  the  defendant  had  reasonable  ground  to  believe  that  the 
plaintiff  had  committed  the  felony  with  which  he  charged  him  ?  There 
is  no  dispute  about  these  points.     Tlieij  ahow  plain  probable  cause,  and 

(f7)  Pee  4  Strob.,  208.     An. 

(b)  See  Fulmer  vs.  Jlarman,  3  Rich.,  576.  Ford  vs.  Kelserj  ^  Deas,  4  Ricli.,  374. 
An. 


52i  CHARLESTON",  FEBRUARY,  1842.      VOL.  II.  [*274 

hence  the  plaintiff  must  fail.     If  authority  be  necessary  to  sustain  this 
view  of  tlie  case,  it  will  be  found  in  Fields  vs.  Gibbes,  decided  by  the 
Court  of  Appeals  at  Columbia,  in  May,  1837.     (MS.  Ati.) 
The  motion  for  a  nonsuit  is  granted. 

RicnARDSON  and  Waudlaw,  JJ.,  concurred. 

Butler,  J.,  I  am  in  favor  of  a  new  trial. 

<;.---,  *EvANS,  J.  I  think  there  was  a  sufficient  arrest ;  but  that  there 
^^'^-l  was  probable  cause  for  the  prosecution,  and  I  concur  on  that 
ground. 


James  L.  Ross,  Sheriff,  ads.  David  Gavin,  et  al. 

By  the  fee  bill  of  1840,  the  ten  times  the  excess,  which  the  officer  is  made  liable 
to  forfeit  to  the  party  injured,  is  "to  be  recovered  by  suit  in  the  Court  of 
Common  Pleas,  in  which  no  imparlance  shall  be  allowed ;  or  by  rule,  in  the  case 
of  sheriffs,  or  by  sum.  pro.  in  the  cases  of  magistrates  and  constables,  where 
the  penalty  may  not  exceed  820."  By  the  fee  bill  of  1839,  (of  which  that  of 
1840  is  amendatory,  so  far  as  relate  to  sheriffs,)  the  ten  times  the  excess  is  to 
be  recovered  by  suit  in  the  Court  of  Common  Pleas,  in  which  no  imparlance 
shall  be  allowed,  or  by  rule,  when  the  penalty  may  not  exceed  twenty  dollars. 
Putting  tliese  two  acts  together — it  was  held,  that  the  qualification  in  the  Act  of 
1840,  when  the  penalty  may  not  exceed  820,  as  applying  to  the  rule  in  the  case 
of  sheriffs,  and  to  the  sum.  pro.  in  the  case  of  magistrates  and  constables. 

Before  Richardson,  J.,  at  Walterboro',  Fall  Term,  1S41. 

The  following  opinion  of  the  Appeal  Court  fully  presents  the  history 
of  the  case. 

Curia,  per  Wardlaw,  J.  The  defendant,  James  L,  Ross,  seeks  by 
rule  to  make  the  sheriff  liable  for  ten  times  the  amount  of  excess  of  fees 
improperly  charged.  No  written  order  was  entered  on  the  Circuit;  but 
the  presiding  Judge  refused  the  order  proposed  to  make  the  sheriff  liable 
for  ten  times  the  excess,  and  expressed  his  opinion  that  he  should  be 
liable  for  the  supposed  excess  of  $32  79,  and  ten  per  cent,  thereon  ;  hold- 
that  it  was  a  matter  of  discretion  to  impose,  by  way  of  punishment, 
according  to  the  circumstances,  any  penalty  short  of  ten  times  the  excess. 
The  dereiidant  asks  his  proposed  order  from  this  Court,  and  the  whole 
*g-/j-]  maltor  has  been  reviewed.  Avoiding  *any  expression  of  opinion 
-I  not  now  required,  as  to  the  question  whether,  in  a  fit  case,  discre- 
tion should  be  allowed  as  to  the  amount,  or  ten  times  the  excess  taken  as 
a  fixed  penalty  or  forfeiture,  this  Court  is  not  satisfied  that  fees  have  been 
improperly  cliarged  to  the  amount  of  the  excess  stated  by  the  clerk;  or 
that  in  any  view  it  can  take  of  the  excess,  the  proceeding  by  rule  is  here 
correct. 

Upon  ten  executions  against  the  same  defendant,  fully  paid  to  him,  the 
Sheriff  has  charged  in  each  case  for  his  commissions  twe  per  cent,  on  the 
first  $300,  and  one  per  cent,  on  the  balance  ;  the  clerk,  aggregating  the 
whole  collections,  allows  two  per  cent,  on  the  first  $300,  and  one  per  cent. 


*21G]  ROSS  ads.  GAVIN  ET  AL.  525 

only  on  the  entire  balance.  The  clerk  proceeds  upon  a  literal  construc- 
tion of  the  words — "  Commissions  on  all  moneys  collected  by  him."  But 
these  words  as  well  embrace  all  moneys  collected  from  all  defendants,  as 
all  moneys  collected  in  all  cases  against  the  same  defendant ;  and  if  they 
are  to  be  confined  to  moneys  from  the  same  defendant,  stronger  reasons 
both  of  construction  and  expediency  would  confine  them  to  moneys  in 
the  same  case.  The  fee  bills,  in  their  whole  scope,  where  a  contrary  in- 
tendment does  not  plainly  appear,  necessarily  contemplate  the  services  of 
officers  in  a  particular  case ;  and  instances  are  easily  imagined  of  confu- 
sion and  injustice  from  an  attempt  to  group  various  cases.  Commissions 
constitute  the  main  compensation  for  the  trouble  and  responsibility  of 
the  sheriff  in  receiving  and  paying  away  moneys,  charging  and  discharg- 
ing himself  in  his  execution  book,  making  calculations,  applying  moneys 
according  to  the  rights  of  various  plaintiffs,  and  taking  receipts — and  if 
the  compensation,  adjusted  so  as  to  afford  an  adequate  remuneration  in  a 
case  of  small  amount,  and  not  an  excessive  one  in  a  case  of  large  amount, 
is  to  be  reduced,  because  the  defendant  is  unfortunate  enough  to  have 
various  executions  against  him,  it  should  at  least  appear  that  by  that 
circumstance  the  trouble  or  responsibility  of  the  sheriff  is  diminished. 
Where  the  sheriff"  is  to  have  refunded  to  him  an  outlay,  as  in  the  case  of 
atafe  vs.  Beckett,  (3  McCord,  290,)  for  printer's  bill  for  advertising,  or 
as  in  the  present  case,  for  keeping  mules  and  dieting  negroes,  &c.,  it  is 
reasonable  and  proper  that  money  expended  or  labor  bestowed  in  refer- 
ence to  the  ^subject  rather  than  the  case,  being  once  paid  should  i-jjcn^t, 
not  be  multiplied  by  construction;  but  such  matters  are  easily  dis-  L 
tinguishable  from  the  services  expected  to  be  performed  in  every  case, 
and  in  reference  to  which  the  fee  bill  has  prescribed  such  rates  of 
charge  as  were  supposed  likely,  in  view  of  the  probable  number  of  cases, 
to  afford  a  reasonable  compensation  to  the  officer,  (a) 

Many  of  the  observations  made  as  to  commissions,  apply  to  mileage, 
which  the  clerk  allows  but  once,  although  charged  by  the  sheriff  on  the 
levy  of  every  execution.  The  words  of  the  Fee  Bill  of  1840(6)  are  "levy- 
ing attachment  or  execution,  besides  mileage,  one  dollar  ;"  and  in  a  pre- 
vious part,  "for  serving  every  writ,  &c.,  besides  mileage,  one  dollar;" 
"  mileage  to  defendant's  or  witness'  residence,  or  place  where  found, 
going,  but  not  returning,  five  cents  per  mile."  The  expressions  indicate 
the  propriety  of  the  charge  in  each  case.  If  mileage  is  to  be  charged 
but  once,  because  but  one  ride  was  taken,  although  many  writs  carried, 
then  an  inquiry  must  be  instituted  of  the  number  of  writs  carried  by 
a  sheriff  at  once,  and  the  first  mile  divided  between  all,  the  second 
between  those  not  served  in  the  course  of  the  first,  and  so  on,  until  it  can 
be  ascertained  how  many  remained  to  share  the  charge  for  the  latter  por- 
tion of  the  journey.  If  a  levy  be  unnecessarily  made  on  many  execu- 
tions, where  one  would  have  served,  a  question,  ditfereut  from  that  now 
under  consideration,  might  be  presented. 

►Striking  from  the  excess,  ascertained  by  the  clerk,  all  that  relates  to 
commissions  and  mileage,  the  balance  would  be  $6  75  ;  and  as  to  the 
defendant's  right  to  claim  ten  times  that  reduced  excess,  the  Court  is  of 
opinion  that  it  cannot  be  investigated  on  rule.     By  the  Fee  Bill  of 

(a)  See  2  Rich.,  23.     An.  {h)  11  Stat.,  104,  I  2.     An. 


526  CHARLESTON,  FEBRUARY,  1842.      YOL.  11.  [*2T7 

1840,  the  ten  times  the  excess,  which  the  officer  is  made  liable  to  forfeit 
to  the  party  injured,  is  "  to  be  recovered  by  suit  in  the  Court  of  Common 
Pleas,  in  which  no  imparlance  shall  be  allowed  ;  or  by  rule,  in  the  case 
of  sheriffs,  or  by  summary  process,  in  the  cases  of  Magistrates  or  Con- 
stables, where  the  penalty  may  not  exceed  twenty  dollars."  By  the  Fee 
Bill  of  1839, (a)  (of  which  that  of  1840(6)  was  amendatory,  so  far  as 
concerns  sheriffs,)  the  ten  times  the  excess  "  is  to  be  recovered  by  suit 
^ntron  in  the  Court  of  Common  Pleas,  in  which  *no  imparlance  shall 
''J  be  allowed,  or  by  rule,  when  the  penalty  may  not  exceed  twenty 
dollars."  Putting  these  acts  together,  this  Court  regards  the  qualifica- 
tion in  the  Act  of  1840,  "  when  the  penalty  may  not  exceed  twenty 
dollars,"  as  applying  both  to  the  "  rule  in  the  case  of  sheriffs,"  and  to  the 
"summary  process  in  the  cases  of  Magistrates  or  Constables."  The 
provision  as  to  Magistrates  Constables  seems  to  have  been  intro- 
duced, in  a  sort  of  parenthesis,  because  only  the  Act  of  1840  spoke  of 
those  officers  whose  small  fees,  increased  ten  fold,  might  not  some- 
times exceed  twenty  dollars,  and  without  such  provision  it  might  have 
been  supposed  that  the  Court  of  Common  Pleas  could  not  take  cogni- 
zance of  a  case  below  twenty  dollars,  and  so  within  the  exclusive  juris- 
diction of  Magistrates.  As  to  sheriffs,  no  reason  could  have  existed 
why  the  summary  proceeding  by  rule,  held  in  1839  inapplicable,  where 
the  amount  exceeded  twenty  dollars,  should  in  1840  be  extended  to  an 
indefinite  amount.  There  is  much  propriety,  in  reference  to  our  consti- 
tution, and  the  rights  of  the  citizen,  in  holding  that  a  highly  penal  provi- 
sion should  not,  above  that  sum  as  to  which  the  right  of  trial  by  jury  has 
ordinarily  been  heretofore  preserved,  be  enforced  by  a  proceeding 
which  is  peculiarly  arbitrary  and  severe. 

The  rule  against  the  sheriff,  H.  W.  Rice,  is  therefore  discharged. 

Richardson,  O'Xeall,  Evans  and  Butler,  JJ.,  concurred. 

Edwards,  for  the  motion.    Cam,  contra. 

See  2  Strob.,  3SS.     An. 


*279]        *C.  M.  Creiger  et  ux.  vs.  Benj.  J.  Smith,  (c) 

TVhoro  an  action  of  assumpsit  has  been  bronglit  in  the  name  of  the  husl)ancl  and 
wife,  and  the  declaration  alleges  the  promise  to  have  been  made  to  the  husband 
and  wife  jointly — witliout  stating  the  interest  of  the  wife,  or  any  reason  why 
she  was  joined.  It  was  held  a  good  ground  in  arrest  of  judgment,  and  the 
verdict  of  the  jury  did  not  cure  the  defect. 

Before  Wardlaw,  J.,  at  Gillisouvile,  January,  Extra  Court,  1841. 

The  circumstances  that  gave  rise  to  this  case,  will  be  fully  understood 
from  the  argument  and  the  opinion  of  the  Court,  without  any  further 
detail. 

(«)  11  Stat.,  11,  §  2.     An.  (6)  11  Stat.,  IOC,  §  8.     An. 

{r)  S.  C.  Supra,  140.     An. 


'279] 


CREIGER    ET   UX.    VS.    SMITH.  527 


Wardlaw,  J. — The  declaration  in  assumpsit  alleges  the  promise  to 
have  been  made  to  the  husband  and  wife  jointly,  without  an}-  statement 
of  the  wife's  interests,  or  any  reason  shown  why  she  should  have  been 
joined.  The  defect  is  plainly  one  which  is  not  cured  by  the  verdict,  and 
which  is  fatal  upon  motion  in  arrest  of  judgment.  1  Chit.  PI.  20 ;  2 
Wm.  Bla.  1236  ;  2  Caines'  Rep.  221  ;  2  Bur.  170. 

The  plaintiff's  counsel,  opi)Osing  a  technical  objection  on  his  part  to 
the  technical  exception  now  taken  to  what  he  considers  a  very  merito- 
rious recovery  of  the  plaintiff's,  has  insisted  that  this  motion  sliould  be 
overruled,  because  there  is  a  defect  in  the  office  copy,  which  the  ap})ellant 
has  produced  under  the  Slst  rule  of  Court,  which  requires  that  the  ap- 
pellant relying  on  an  exception  to  the  record,  shall  procure  and  bring 
up  an  office  copy.  The  office  copy  here  produced,  contains  the  decla- 
ration, plea,  similiter  and  verdict,  and  is  said  to  be  defective,  because 
the  notice  of  a  discount  which  was  offered  is  not  contained  in  it. 

If  it  appeared  that  the  omission  made  by  the  officer  might  keep  from 
view  any  tiling  that  could  influence  the  decision,  it  is  proljable  that  the 
Court  would  give  time  for  remedying  the  defect,  rather  than  dismiss  the 
appeal.  But  it  is  not  even  alleged  that  there  was  any  thing  i)eculiar  in 
the  notice  of  discount,  or  that  it  could  have  caused  the  defect  in  the 
declaration  ;  and  it  would  be  extreme  severity  to  reject  an  oflice  copy, 
which  presents  all  that  is  necessary  for  understanding  the  motion, 
because  something  immaterial  is  omitted.  If  the  notice  of  discount  be 
essential,  why  not  *also  the  writ,  the  sheriff's  return,  and  the  r^goA 
venire  ?  The  office  copy  required  by  the  rule  is  not  a  perfect  ^ 
exemi)lification.  In  the  common  parlance  of  the  profession,  the 
pleadings  are  called  the  record,  although  in  absolute  strictness  it  may 
be  untechnical  to  call  them  so,  whilst  they  remain  in  poper  before  entry 
of  judgment.  The  appellant  here  has  produced  all  that  either  party 
could  have  occasion  to  refer  to,  and  has  obeyed  the  rule,  according  to 
the  usual  practice  of  the  Court. 

The  motion  is  granted. 

Richardson,  O'Neall,  Evans,  Butler,  and  Earle,  JJ.,  concurred. 

W.  F.  Hutson,  for  the  motion,  argued — in  all  cases,  if  the  wife  be  jninted  in 
the  action,  her  interest  must  he  expressly  stated  in  the  declaration,  and  cannot  be 
intended.  1  Chit.  PL,  20;  C,  20.  Jac,  044.  2  Caines  Rep.,  221;  2  Black., 
123(5 ;  1  Bar.,  75,  249.  But  it  may  be  objected,  that  the  husband  had  a  right  to 
bring  the  action  alone.  This  does  not  avail.  See  1  Chitty,  19  and  20.  It  is  not 
too  late  too  move  in  arrest  of  judgment,  though  the  plaintiif  might  have  demui-red. 
Bidgooil  vs.  Way  and  tcife,  2  Black.,  1236;  Abbott  i^~  Blojield,  Cro.  Jac.,  (544; 
Holmes  §•  Wood,  1  Bar.,  75  and  249;  Venters  vs.  England  and  icifc,  1  M'C,  14; 
Chapman  and  icife  vs.  Hardy  and  wife,  Brev.  Rep.  S.  P.,  1  M'C,  578. 

E.  and  A.  Rhett,  contra. 


528  CHARLESTON,  FEBRUARY,  1842.      VOL.  II.  [*281 


*2S]]  *A.  J.  Pyron  et  ux.  vs.  Edward  Mood. (a) 

Wliere  there  lias  been  a  jiost-nnptial  agreement,  between  two  parties,  and  a  deed 
of  trust  is  executed  (to  a  third  party  as  trustee),  of  certain  slaves,  for  the  use 
and  benefit  of  both  husband  wife,  during  life,  upon  the  death  of  either,  to  the 
the  use  of  the  survivor,  and  after  the  death  of  both,  to  the  use  of  the  children 
of  the  marriage,  with  a  power  to  sell  and  reinvest,  at  the  request  of  husband  and 
wife,  or  the  survivor  of  them ;  and  after  the  death  of  the  wife,  the  trustee,  at 
the  request  of  the  husband,  sold  the  slaves  and  conveyed  them  to  the  defendant. 
It  was  held,  that  the  purchaser's  title  was  good.  That  the  trustee  had  not  only 
the  legal  estate  in  the  property,  but  he  had  the  power  to  sell,  and  at  law,  the 
title  could  not  be  disputed. 

Before  Butler,  J.,  Charleston,  January  Term,  1S41,  whose  report  of  the 
facts  of  this  case  is  as  follows  : 

This  was  an  action  of  trover  for  five  negroes.  The  plaintiff,  Prjon, 
married  one  of  the  daughters  of  Charles  and  Rachel  Simons,  and  he, 
with  the  other  minor  children  of  the  same  parents,  bring  tlie  action 
against  the  defendant,  who  bought  the  negroes  in  question  from  Peter 
Redheimer,  the  trustee  of  Rachel  and  Charles  Simons,  in  their  lifetime, 
and  as  the  case  will  turn  on  the  right  of  Redheimer  to  sell,  under  certain 
deeds  of  trust,  it  will  be  necessary  to  advert  to  them,  and  the  circum- 
stances under  which  they  were  executed.  Charles  Simmons  married  the 
sister  of  Redheimer,  his  habits  became  intemperate,  so  much  so  as  to 
excite  the  fears  of  his  friends  that  he  would  waste  liis  property  and  leave 
his  family  destitute  ;  and  with  a  view  of  securing  the  property  which  he 
had,  for  the  use  of  himself  and  his  wife  during  life,  and  after  their  death  to 
their  children,  he  and  his  wife  executed  a  deed  of  trust  to  Redheimer. 
This  deed  was  executed  8th  October,  1829.  After  reciting  the  objects 
for  whicli  it  was  made,  ahd  describing  the  property  conveyed,  part  of 
which  was  the  negroes  in  controversy,  it  contains  the  following  clause, 
to  wit,  to  have  and  to  hold,  and  so  forth,  "  in  trust  to  permit  and  suffer  the 
said  Charles  and  Rachel  Simons  to  have,  use,  occupy  and  enjoy  the  above 
granted  ])remises,  and  to  receive  the  interest,  income  and  emoluments  aris- 
ing therefrom,  for  and  during  the  joint  natural  lives  of  them,  the  said  Charles 
and  Pviichel,  without  being  subject  and  liable  to  the  debts,  &c.,  of  the  said 
Charles  and  Rachel  ;  and  from  and  immediately  after  the  death  of  either 
of  them,  the  said  Cliarles  and  Rachel,  then  in  trust  to  permit  and  sulfer 
#2301  *^''C  survivor  of  them,  the  said  Charles  and  Rachel,  to  have,  use, 
"-'  occupy  and  enjoy  the  above  granted  premises,  and  to  receive  the 
interest,  income  and  emoluments  arising  therefrom,  for  and  during  tlie 
life  of  Hiiid  survivor;  and  from  and  immediately  after  the  death  of  such 
survivor,  then  in  trust,  to  and  for  the  use,  benefit  and  behoof  of  the  issue 
of  said  marriage,  if  more  than  one,  as  tenants  in  common  and  not  as  joint 
tenants,  their  heirs,  executors,  administrators  and  assigns  ;  and  if  but 
one,  to  tiiat  one,  his  or  her  heirs,  executors,  administrators  or  assigns, 
free,  clear  and  absolutely  discharged  of  and  from  all  and  any  further  trusts 
whatsoever."  The  above  property  continued  in  the  possession  of 
Charles  and  Rachel  til!  the  death  of  Rachel,  who  died  2Gth  October, 
183G,  and  her  husband,  Charles,  died  November  9th,  ensuing.     He  was 

(a)  E.vamincd,  perhaps  overruled,  in  Rice  ads.  Burnett,  Sp.  Eq.,  589,  591.     An. 


'282] 


PTRON   VS.    MOOD.  529 


fouiul  dead,  witli  a  bottle  that  had  some  spirits  in  it,  and  a  bottle  of 
laudamini.  An  inque8t  was  held  over  the  body  :  verdict  that  the  de- 
ceased came  to  his  death  l)y  drinking  ardent  spirits  and  taking  laudanum. 
With  a  view  to  show  that  Redhcimer  sold  the  property  now  in  contro- 
versy, before  the  death  of  Charles  Simons,  tlie  survivor,  and  of  course 
with  his  consent,  the  plaintiff  offered  in  evidence  the  bill  of  sale  from 
Kedheimer  to  the  defendant,  and  which  he  contended  bore  date  2d  March, 
1837,  and  that  it  had  been  fraudulently  ante-dated  to  2d  November  past, 
and  in  the  sixtieth  year  of  American  Independence — the  word  sixty-first 
having  been  erased  and  sixty  inserted.  Tliis  is  noticed  by  memorandum 
above  the  name  of  the  witness  Carson,  who  was  not  present  when  the 
paper  was  given  in  evidence.  He  was  sent  for,  and  being  sworn,  said 
that  the  bill  of  sale  bore  its  true  date,  and  that  he  was  certain  it  was  exe- 
cuted in  thirty-six  and  not  thirty-seven,  and  he  said  he  had  no  doubt  that 
it  was  executed  in  good  faith  and  in  conformity  with  the  ex})ress  under- 
standing of  the  parties,  Charles  Simons  and  Redheimer.  Here  it  appeared 
that  Redheimer  had  the  children  of  said  Rachel  and  Charles,  and  was 
educating  and  supporting  them.  Mr.  Carson  said  it  was  understood 
these  negroes  were  unproductive,  and  was  sold  for  the  purpose  of  having 
their  proceeds  invested  in  other  productive  property. 

It  will  be  seen,  if  the  deed  bore  its  true  date,  it  was  executed  seven 
days  before  the  death  of  Simons,  and  that  it  *was  so  executed,  I  r^goo 
have  no  doubt.  For  the  purpose  of  showing  that  Charles  Si-  ^ 
mons,  the  survivor,  had  given  his  assent  to  the  sale  of  this,  as  well  as 
other  property  contained  in  the  deed  of  October,  1829,  the  defendant 
ofifered  in  evidence  a  deed,  bearing  date  29th  October,  1836,  executed  by 
Charles  Simons  to  Redheimer.  This  deed,  after  many  recitals  and  expla- 
nations of  its  objects  and  designs,  contains  this  clause  :  "  And  whereas, 
most  of  the  negroes  are  young  and  unable  to  work,  producing  no  income 
to  the  estate,  this  conveyance  is  therefore  made  to  the  said  Redheimer, 
that  he  will  sell  any  or  all  of  said  negroes  at  the  best  market  price,  and 
invest  the  proceeds  (after  paying  the  said  debts  and  funeral  expenses  of 
the  said  Rachel  Simons)  in  other  property  that  will  be  more  for  the 
benefit  of  the  said  children,  and  in  trust  that  the  said  Peter  Redheimer 
will  take  the  said  children  in  charge,  and  have  them  educated,  &c.,  out 
of  the  income  arising  out  of  said  trust  estate,"     (See  deed.) 

This,  it  was  contended,  referred  to  and  was  in  conformity  with  the  last 
clause  in  the  deed  of  1829,  which  is  as  follows  : — "  And  lastly,  it  is 
hereby  covenanted  and  agreed  between  the  said  Charles  and  Rachel  Si- 
mons, and  Peter  Redheimer,  that  at  any  time  when  it  shall  appear  bene- 
ficial, or  for  the  interest  of  the  said  Charles  or  Rachel,  to  sell  or  dispose 
of  any  of  the  above  mentioned  property,  that  the  said  Peter  will  sell  and 
dispose  of  the  same,  at  the  joint  request,  or  at  the  request  of  the  survivor 
of  them,  and  vest  the  proceeds  in  other  property,  which  shall  l)e  imme- 
diately sul»ject  to  the  operation  of  all  the  uses  and  trusts  expressed  in 
this  indenture." 

I  will  not  here  undertake  to  give  the  reasons  of  my  judgment  below, 
on  the  construction  of  the  deeds  and  clauses  of  deeds  which  affected  the 
rights  of  the  parties  concerned. 

I  held,  that  by  the  deed  of  October,  1829,  Redheimer  had  the  legal 
title  in  him,  and  that  it  continued  in  him  until  the  death  of  Charles  Si- 
ToL.  I.— 35 


530  CHARLESTON,  FEBRUARY,  1842.      VOL.  IL  [*283 

mons  ;  or,  to  state  the  converse  of  the  proposition — that  the  trast  was 
not  executed  in  Simons  and  wife,  during  their  joint  life,  or  in  the  sur- 
vivor. The  true  object  of  the  deeds  being  to  deprive  Charles  Simons 
*9Si1  '^^  ^"y  control  of  the  property  at  any  time,  *to  the  prejudice  of 
-J  his  wife  and  children.  After  the  death  of  his  wife,  Charles  sur- 
renders his  interest  to  the  trustee  during  his  life,  for  the  purpose  of  main- 
taining the  children,  and  gives  an  express  authority  to  sell  and  invest, 
&c.,  for  the  purpose  of  effecting  the  true  end  of  the  trust.  The  whole 
question  was,  whether  the  title  was  made  to  defendant  while  Redheimer 
was  trustee,  for,  if  so,  the  title  would  be  good  in  a  Court  of  law.  Another 
question,  however,  was  submitted  to  the  jury,  viz.  :  did  Simons  assent  to 
the  sale  to  defendant  in  his  lifetime,  or  was  the  sale,  in  fact,  made  with- 
out his  assent  and  after  his  death  ?  This  was  the  question  mainly 
argued,  and  upon  it,  the  jury  found  for  the  defendant. 

Deed  of  Sth  Octobek,  1829. 

State  of  South  Carolina. 
Tliis  indenture  made  the  eighth  day  of  October,  in  the  year  of  our  Lord  one 
thousand,  eight  hundred  and  twenty-nine,  between  Charles  Simons  and  Rachel 
Simons,  of  the  city  and  district  of  Charleston,  and  State  aforesaid,  of  the  one  part, 
an<l  Peter  Redheimer,  also  of  the  said  City  and  State  aforesaid,  of  the  other  part. 
Wliereas,  in  consequence  of  the  iniermarriage  of  the  said  Charles  Simons  with  his 
wife,  Rac-hel  Simons,  he  became,  in  right  of  his  said  wife,  possessed  of  and  entitled 
unto  the  following  property  hereinafter  mentioned.    And  whereas,  the  said  Charles 
Simons  and  Rachel  Simons  are  desirous,  from  the  love  and  affection  they  and  each 
of  them  bear  unto  their  children,  Charles  John  Simons,  Eliza  Ann  Simons,  Sarah 
Christina  Myrick  Simons,  and  all  the  future  issue  of  the  said  Rachel  Simons,  law- 
fully begotten  by  the  said  Charles   Simons,   to  settle   upon  them  the  following 
property,  tliey  became  so  possessed  of  and  entitled  unto  by  their  said  marriage  afore- 
said.    Now,  therefore,  this  indenture  witnesseth  that  the  said  Charles  and  Rachel 
Simons,  for  and  in  consideration  of  the  natural  love  and  affection  which  they  have 
for  their  children  now  got,  and  such  otlier  or  others  as  may  be  gotten,  and  also 
in  consideration  of  the  sum  of  five  dollars  to  them,  the  said  Charles  and  Rachel 
Simons,  in  hand  paid,  at  and  before  the  sealing  and  delivery  of  these  presents,  by 
i:2or-|  ^he  said  Peter  Redheimer.  the  receipt  whereof  is  hereby  *aeknowleged,  hath 
given,  granted,  bargained  and  sold,  and  by  these  presents  doth  give,  grant, 
bargain  and  sell  to  said  Peter  Redheimer,  in  actual  possession  now  being  by  virtue 
of  tln'se  presents,  his  heirs,  executors,  administrators  and  assigns,  the  following 
property,  to  wit:  Three  negro  slaves,  named  Polly,  Hannah  and  Thomas;  also,  one 
p-iir  of  mahogany  card  tables,  one  mahogany  work  table,  one  large  mahogany  dining 
table,  two  dozen  sitting  chairs,  one  carpet,  two  plain  brass  dogs,  with  fender,  shovel 
and  tongs,  tea  tables,  cradle,  two  bedsteads  and  bedding,  three  feather  beds,  one 
iuattra.ss,  one  chest  of  drawers,  bed  clothes,  curtains  and  bed-room  furniture,  and 
mahogany  side-board,  tea  and  dinner  set  of  China,  one  safe,  together  with  kitchen 
furniture  ;  also,  with  the  future  issue  of  the  above  mentioned  slaves,  and  increase 
of  such  as  are  ftimales.     To  have  and  to  hold  the  said  recited  property,  with  the 
fiituH'  issue  and  increase  of  the  above  named  female  slaves,  unto  the  said  Peter 
Redlieimer,  liis  heirs,  executors,  administrators  and  assigns ;  subject,  nevertheless, 
to  such  trusts,  and  to  and  for  such  uses,  intents  and  purposes,  as  are  hereinafter 
limited,  declared  and  expressed,  of  and  concerning  the  same.     That  is  to  say,  in 
trust,  to  i)ermit  and  sulfer  the  said  Charles,  and  Rachel  Simons,  his  wife,  to  have, 
nae,   occupy  and  enjoy  the   above  granted  premises,  or  to  receive  the  interest, 
income  and  omolnnients  /irising  therefrom,  /or  and  during  the  joint  natural  lives  of 
thtm,  thp  Kaid  Charles  and  Rnchel  Simons,  his  wife,  withoutheing  suhjert  or  liable  to  the 
drl,t'<,  rrinlrnl  or  (ngagrmmtx  of  the  said    Charles,  and  Rachel  Simons,  his  ivife ;  and 
fioiii  and  iwmediateli/  after  the  death  of  either  of  them,  the  said   Charles  and  Rachel 
Simons,  then   in  trust,  to  permit  and  suffer  the  survivor  of  them,  the  said   Charles  and 
Rachel  Simons,  to  have,  xise,  occupy  and  enjoy  the  above  granted  premises,  or  to  receive 


'285] 


PTRON    VS.    MOOD.  531 


the  interest,  income  and  emoluments  arising  therefrom,  for  and  during  the  life  of  such 
sttnnfor;  and  from  and  imniediatcfi/  after  the  denth  of  such  surinvor,  theti  in  trust  to  and 
for  the  use,  benefit  and  behoof  of  the  issue  of  the  said  marriage,  if  more  than  one,  as 
tenants  in  common,  and  not  as  joint  tenants,  their  heirs,  executors,  administrators  and 
assigns;  and  if  hut  one,  to  that  one,  and  his  or  her  heirs,  executors,  administrators  and 
assigns,  free,  clear  and  ahsolutehj  discharged  of  and  from  all  and  any  *  further  r^tooi. 
trusts  ichatsoecer.  And  lastly,  it  is  hereby  covenanted  and  agreed,  by  and  between  '■ 
the  said  Charles  and  Rachel  Simons,  and  Peter  Redheimer,  that  at  any  time  when  it  shall 
appear  beneficial,  or  for  the  interest  of  the  said  Charles  and  Rachel  Simons,  to  sell  or  dis- 
pose of  any  of  the  above  mentioned  property,  that  he,  the  said  Peter  Redheimer,  will  sell 
and  dispose  of  the  same  at  their  joint  request,  or  at  the  request  of  the  survivor  of  therfi,  and 
vest  the  proceeds  in  other  property,  which  shall  be  immediately  subject  to  the  operation 
of  all  the  trusts  and  tises  expressed  and  declared  in  this  indenture.  In  witness  whereof, 
the  parties  to  these  presents  have  hereiinto  subscribed  their  signatures  and  affixed 
their  seals,  at  Charleston,  So.  Ca.,  the  district  aforesaid,  the  day  and  year  first 
above  written,  and  in  the  fifty-third  year  of  American  Independence. 

CHARLES  SIMONS,  [l.  s.] 

R.  SIMONS,  [L.  s.] 

PETER  REDHEIMER,   Trustee,     [l.  s.] 
Signed,  sealed  and  delivered,  in  the  presence 

of  us.      The  words,    "and  if  but  one,  to 

that  one,  and  his  or  her  heirs,  executors, 

administrators    and   assigns,"    being   first 

interlined  above  the  seventh  line,  on  the 

opposite  side. 

John  Rivers,  i     ttt-^  ^      o- 

„  A     T>  /•     Witnesses  for  Simons. 

Harriet  A.   Redheimer,      )  -^ 


IhOMAS    E.    DeVEAUX,  )       tp       rr       ^ 

,,  n,  '  y    ror  Irustee. 

Mathew  Muggkidge,  ) 


South  Carolina,    Charleston  District, 

Thomas  E.  Deveaux,  being  duly  sworn,  made  oath  that  he  was  present,  and 
saw  Charles  Simons,  R.  Simons,  and  *Peter  Redlieimer,  trustee,  sign,  seal  r*9Qy 
and  deliver  this  instrument  of  writing,  for  the  uses  and  purposes  therein   '- 
mentioned,  and  that  he,  with  John  Rivers,  Harriet  A.  Redheimer,   and  Matthew 
Muggridge,  witnessed  the  same. 

Sworn  to,  before  me,  this  9th  October,  1829.     Recorded  9th  October,  1829. 

Wm.  Ed.  Hayne,  Qu.  &N.  P. 

Secretary  of  State's  office,  Charleston,  So.  Ca.,  Dec.  29th,  1841. 
The  foregoing  is  a  correct  copy  of  record  in  this  office,  in  Miscellaneous  record 
book,  H.  H.  H.  H.  H.,  pages  413,  414.     Examined  and  certified  by 

THOMAS  S.  JONES, 
Dep.  SecHy  State. 

Deed  of  29th  October,  1836. 
State  of  South  Carolina,  Charleston  District. 

Know  all  men,  by  these  presents,  that  I,  Charles  Simons,  of  the  District  and 
State  aforesaid,  in  consideration  of  the  love  and  afi"ection  I  bear  my  son,  Charles 
John  Simons,  my  daughter  Sarah  Christina  Myrick  Simons,  my  daughter  Harriet 
Ann  Simons,  and  my  infant  son,  James  Peter  Simons,  all  born  of  my  wife,  Rachel 
Simons,  and  also  in  consideration  of  the  sum  of  one  dollar  to  me  in  hand  paid  at 
and  before  the  sealing  and  delivery  of  these  presents,  the  receipt  whereof  is  here- 
by acknowledged,  do  hereby  alienate,  transfer,  convey  and  release  all  my  right, 
title  and  interest  in  and  to  the  following  slaves,  namely,  Polly,  Hannah,  Thomas, 
Billy,  John,  James,  Sarah  and  Robert,  together  with  the  future  issue  and  increase 
of  the  females,  unto  Peter  Redheimer,  in  trust,  nevertheless,  and  to  and  for  the 
proper  use  and  behoof  of  my  aforesaid  children,  Charles,  John,  Sarah  Christina 
Myrick,  Harriet  Ann  and  James  Peter,  all  minors,  (the  eldest  being  in  her  twelfth 
year,  and  the  youngest  in  his  second  year, )  or  the  survivor  or  survivors  of  them, 
should  one  or  more  of  my  said  children  die  without  issue   and  before  coming  of 


532  CHARLESTON,  FEBRUARY,  1842.      VOL.  II.  [*287 

age,  and  to  his,  her  or  their  lawful  heirs  forever.  Whereas,  by  a  certain  inden- 
ture or  deed  of  trust,  made  and  executed  at  Charleston,  in  the  District  and  State 
aforesaid,  on  the  eighth  *day  of  October,  one  thousand  eight  hundred  and 
-'  twenty-nine,  by  the  said  Charles  Simons  and  the  said  Rachel  Simons,  his 
wife,  three  of  the  said  slaves,  namely,  Polly  Hannah  and  Thomas,  were  duly 
conveyed  to  the  said  Peter  Redheimer,  in  trust  for  the  children  of  the  said  Charles 
and  Rachel  Simons,  then  alive,  namely,  Charles,  John,  Eliza  Ann,  and  Sarah 
Christina  Myrick  Simons,  but  Eliza  Ann  having  died,  and  the  infant  child,  James 
Peter,  in  tliis  deed  mentioned,  having  been  born  after  and  since  the  date  of 
the  aforesaid  deed  of  trust,  and  the  said  Charles  Simons,  by  and  with  the  consent 
of  his  said  wife,  Rachel,  (since  dead,)  in  her  lifetime  obtained,  wishing  to  release 
and  convey  unto  the  said  Peter  Redheimer,  in  trust  as  aforesaid,  the  life  estate  of 
him,  the  said  Charles  Simons,  in  said  deed  of  trust  reserved,  he,  the  said  Charles 
Simons,  hereby  releases  and  conveys  the  said  life  estate,  with  all  other  rights,  titles 
and  interests  in  the  said  three  slaves,  and  the  issue  of  the  feiiudes,  from  and  after 
the  date  of  the  said  deed  of  conveyance,  unto  the  said  Peter  Redheimer,  his  exe- 
cutors and  administrators,  to  and  for  the  trust,  uses  and  purposes  aforesaid.  And 
whereas,  two  of  the  negroes  in  said  deed  of  trust  conveyed,  namely,  Polly  and 
her  child  Thomas,  have  been,  since  the  date  of  said  deed,  sold  and  delivered  to 
for  and  during  the  lifetime  of  the  said  Charles  and  Rachel 
Simons,  according  to  the  reservation  in  said  deed,  whereby  the  remainder  alone 
can  vest  in  the  said  Peter  Redheimer,  trustee  as  aforesaid.  Now,  the  said  Charles 
Simons  ratifies  and  conjirms  said  remainder  in  said  trustee,  rested  by  virtue  of  the  afore- 
said indenture  or  deeds  of  trust.  And  whereas,  the  slave  Billy  herein  conveyed, 
has  been  purchased  by  the  proceeds  of  the  sale  of  the  said  life  estate  of  the  two 
negroes,  Polly  and  her  child  Thomas,  by  him  the  said  Charles . Simons  sold  and 
delivered  for  the  term  aforesaid. 

Now,  the  said  Charles  Simons,  for  the  above  consideration,  hereby  sells,  trans- 
fers and  conveys  the  said  slave  Billy,  (being  one  of  those  above  conveyed  gen- 
erally) unto  the  said  Peter  Redheimer,  trustee  as  aforesaid,  to  and  for  the  uses  and 
purposes  aforesaid.  And  whereas,  all  the  slaves  and  other  property  in  said  deed 
of  trust  conveyed,  came  into  the  possession  and  ownership  of  the  said  Charles 
♦ocQi  *Simons  by  his  marriage  with  his  wife  Rachel.  In  consideration  of  wliich, 
■'  (with  the  considerations  above  mentioned,)  he  makes  and  ratifies  this  deed 
to  secure  the  said  estate  to  the  issue  of  her  body.  And  whereas,  certain  articles  of 
household  furniture  in  said  deed  conveyed  and  specified,  have  been,  since  the 
date  thereof,  sold  and  delivered  in  part,  and  other  articles  purchased.  Now,  the 
said  Charles  Simons  hereby  sells,  conveys  and  releases  all  his  right,  title  and  in- 
terest, to  as  many  of  the  said  articles  as  remain  in  his  possession,  (an  inventory 
of  whicli  is  hereunto  annexed)  unto  the  said  Peter  Redheimer,  trustee  as  afore- 
said, U>r  the  uses  and  purposes  above  mentioned. 

And  whereas,  the  said  Charles  Simons  has  contracted  certain  debts,  to  the 
amount  of  about  three  hundred  dollars,  which  he  requires  to  be  paid  out  of  the 
proceeds  of  the  said  estate  by  the  said  Peter  Redheimer,  trustee,  as  aforesaid  : 
and  the  said  Peter  Risdlieimer,  on  his  part,  undertakes  the  said  payment,  on  the 
terms  of  this  deed  being  fully  complied  with.  And  whereas,  most  of  the  said 
negro«!S  are  young  and  unable  to  work,  producing  no  revenue  to  the  estate,  this 
conveyance  is  therefore  made  to  the  said  Peter  Redheimer,  that  he  will  sell  any 
or  all  of  the  said  negroes,  at  the  best  market  price,  and  invest  the  nett  proceeds, 
(after  paying  the  said  del)ts,  and  tlu^  funeral  and  other  expenses  of  the  said 
Racliel  Simons,)  in  other  property  that  will  be  more  for  the  benejit  of  the  said  chil- 
dren ;  and  in  trust  that  he,  the  saiil  Peter  Redheimer,  will  take  the  said  children 
in  diargo,  and  liave  them  educated,  as  far  as  possible,  out  of  the  interest  or  rev- 
enue arising  from  the  said  trust  estate.  But  should  it  become  necessary  for  the 
said  trustee  to  take  a  part  or  all  of  the  said  capital,  for  paying  the  maintenance, 
oducation  and  other  expenses  of  the  said  children,  he  is  hereby  enjoined,  and  it 
is  the  true  iiit(rnt  and  meaning  of  these  presents,  that  he,  the  said  trustee,  shall 
not  pay  away,  for  or  on  account  of  any  one  of  the  said  heirs,  more  than  his  or 
her  dividend  of  said  i)riiicipal.  And  in  trust,  that  the  said  Peter  Redheimer  shall 
use  all  due  economy  in  tin;  management  of  the  said  estate,  and  cause  to  be  edu- 
cated and  maintained  ea<h  of  the  said  minors,  according  to  the  best  of  his  judg- 


'289] 


PYRON    VS.    MOOD.  633 


ment,  and  agreeably  to  the  means  placed  in  liis  hands  for  that  pnrpose.  To  have 
and  *to  hold  the  said  slaves  and  other  property  herein  conveyed  unto  the  r*290 
the  said  Peter  Redheimer,  his  executors  and  administrators,  to  and  for  the 
use  and  purposes  hereinbefore  described,  to  wit,  for  the  use  of  said  minors.  Charles 
Simons,  Sarah  Christina  Myrick  Simons,  Harriet  Ann  Simons,  and  James  Peter 
Simons,  the  survivor  or  survivors  of  them  as  aforesaid,  and  in  trust  that  the  said 
Peter  Redheimer  shall  pay  over  to  each  of  the  said  heirs,  or  the  survivor  or  sur- 
vivors of  them,  his,  her  or  their  portion  or  dividend  of  the  said  trust  estate,  should 
any  remain  after  deducting  all  the  aforesaid  debts  and  expenses  of  maintenance 
and  education.  In  witness  whereof,  the  said  Charles  Simons,  in  execution  and 
ratification  of  the  above  deed  of  conveyance  in  trust,  and  the  said  Peter  Red- 
heimer in  acceptance  of  the  said  trust,  have  hereunto  set  their  hands  and  seals, 
this  twenty-ninth  day  of  October,  one  thousand  eight  and  thirty-six  and  in  the 
sixty-first  year  of  American  Independence. 

Charles  Simons,       [l.  s.] 
In  the  presence  of  Peter  Redheimer,    [l.  s.] 

Thomas  W.  Malone, 
E.  Thaver. 
The  words  "shall  pay  over"  being  inter- 
lined above    the  fourteenth   line    from 

bottom,  and  the  name  of  ' '  Harriet  Ann 

Simons,"  being  interlined  after  "Sarah 

Christina  Myrick  Simons,"  between  the 

fourth  and  fifth  lines,  fourth,  sixth  and 

seventh,    from   top,   and    between    the 

fifteenth  and  sixteenth  lines  from  the 

bottom. 

South  Carolina. 

Thomas  W.  Malone  appeared,  and  made  oath  that  he  saw  Charles  Simons  and 
Peter  Redheimer  sign,  seal  and  execute  this  instrument  of  writing,  and  that  he, 
with  E.  Thayer,  witnessed  the  same. 

*Sworn  to,  before  me,  this  31st  October,  1836.  [*291 

James  Kingman,  Notary  Public. 

South  Carolina,  Charleston  district. 

Inventory  of  all  the  articles  of  household  furniture  in  the  within  deed,  con- 
veyed to  Peter  Redheimer,  in  trust,  as  therein  specified,  and  this  day  put  in  his 
possession,  according  to  his  own  acknowledgment,  viz.  :  one  side-board,  one  table, 
one  mahogany  bedstead,  one  mahogany  cradle,  one  fender  with  dog-irons,  and 
some  articles  of  kitchen  furniture. 


Charleston,  29th  October,  1836. 
Peter  Redheimer. 


I  acknowledge  the  receipt  of  the  ab(jve  articles 

In  the  presence  of  Thomas  W.  Malone. 
Recorded,  October  31,  1836. 

Secretary  of  State's  Office,  Charleston,  So.  Ca.,  December  13th,  1841. 
The  foregoing  is  a  correct  copy,  taken  from  record,  in  the  office,  in  Miscellane- 
ous record   book,  R.   R.   R.  R.,   pages,   284,   285,   286,  287,   the  word   "charges" 
erased  on  the  fourteenth  line  from  top  of  third  page.         Examined  and  certi- 
fied by 


Thomas  S.  Jones, 
Dep.   Secretary  of  State. 


BILL  OF  SALE. 


The  State  of  South  Carolina. 

Know  all  men  by  these  presents.  That  I,  Peter  Redheimer,  trustee  for  the  minor 
children  of  Charles  Simons,  for  and  in  consideration  of  the  sum  of  sixteen  lum- 
dred  dollars,  to  me  in  hand  paid,  at  and  before  the  sealing  and  delivery  of  these 


534  CHARLESTON,  FEBRUARY,  1842.      VOL.  II.  [*291 

presents,  by  Edward  M.  Mood,  (the  receipt  whereof  I  do  hereby  acknowledge,) 
have  bargained  and  sold,  and  by  these  presents  do  bargain,  sell  and  deliver  to  the 
said  Edward  M.  Mood,  Hannah,  John,  Jim,  Sally,  Robert,  to  have  and  to  hold 
the  said  slaves,  with  the  future  issue  of  the  females,  unto  the  said  Edward  M. 
Mood,  his  executors,  administrators  and  assigns,  to  his  and  their  only  proper  use 
and  behoof,  forever.  And  I,  the  said  Peter  Redheimer,  as  aforesaid,  my  execu- 
*oQoi  tors  and  administrators,  *the  said  bargained  premises,  unto  the  said  Edward 
J  M.  Mood,  his  executors  and  administrators  and  assigns,  from  and  against  all 
persons  shall  and  will  warrant,  and  forever  defend,  by  these  presents.  In  witness 
whereof,  I  have  hereunto  set  my  hand  and  seal,  dated  at  Charleston,  on  the 
seventh  day  of  November,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  thirty-six"v"n,  and  in  the  "i^y  "r^t  sixtieth  year  of  the  Independence  of 
the  United  States  of  America. 

Peter  Redheimer,  [l.  s.] 
Trustee  for  the  minor  children  of  Charles  Simons. 

Signed,  sealed  and  delivered  in  presence  of, 
Elisha  Car.<o.v. 
The  words  "  sixty-first"  being  first  erased. 

I  hereby  guaranty  this  bill  of  sale  to  be  good,  and  free  from  all  claims  whatever, 
unto  Edward  M.  Mood,  his  heirs,  executors,  administrators  or  assigns,  forever. 
Witness,  Thomas  N.  Gadsdex. 

MaSr2nd,  1837.       }    ^^''^^  Redheimer. 
SotTTH  Carolina. 

Thomas  N.  Gadsden  appeared  and  made  oath,  that  he  saw  Peter  Redheimer 
sign  and  execute  the  above  guaranty  and  that  he  witnessed  the  same. 
Sworn  to  before  me,  tliis  tith  March,  1837. 

James  Kingman,  Not.  Pub. 

South  Carolina. 

Elisha  Carson  appeared  and  made  oath,  that  he  saw  Peter  Redheimer,  trustee 
for  the  minor  chililren  of  Charles  Simons,  sign,  seal  and  execute  the  within  bill 
of  sale,  and  that  he  witnessed  the  same. 

Sworn  to  before  me,  this  tJth  March,  1837. 

James  Kingman,  Not.  Pub. 

*293]  *grounds  of  appeal. 

1.  Because  by  the  terms  of  the  deed  of  8th  October,  1829,  from  CharleS 
Simons  ami  Rucliel  his  wife,  to  Peter  Redheimer,  the  trust  was  execufed  in 
tliein  duriiifT  tiieir  joint  lives,  until  the  !26th  October,  1836,  when  Mrs.  Simons 
died — executed  in  Charles  Simons,  the  survivor,  after  that  date  for  life,  until 
his  deatli  on  9lli  November,  1^30.  and  after  that  event,  the  legal  estate  became 
vested  in  the  plaint itis,  the  children  of  the  marriage. 

2.  I'.ecause  the  ])ower  to  sell  by  lledhcimer,  contained  in  the  above  deed, 
even  if  it  could  exist  independent  of  the  execution  of  the  trust  in  Simons  and 
wife  at  all,  was  a  naked  power,  uncoupled  with  an  interest,  requiring  the  express 
joint  assent  of  Simons  and  wife,  if  alive,  and  the  assent  of  the  survivor  of  these 
tenants  for  life,  and  that  deed  never  contemplated  a  sale  after  the  death  of 
Simons  Any  sale  not  contemplated  before  his  death,  by  delivery  and  express 
assent,  was  not  within  the  terms  of  the  power,  even  if  the  personal  power 
existed  apart  from  the  legal  estate. 

3.  Because  the  deed  of  Charles  Simons  to  Peter  Redheimer,  dated  29th 
OctobiT,  1H3(),  is  inoperative,  as  far  as  it  attempts  to  divest  the  legal  rights  of 
the  minor  children,  which  had  accrued  under  the  first  deed  of  8th  October, 
18'J9.  and  to  jx-rmit  it  to  be  evidence  of  an  express  act  of  assent  to  the  sale  to 
the  defendant  .Moofi,  is  in  effect  to  give  it  a  legal  operation. 

4.  Because  the  sale  to  Edward  jM  .  Mood  i.h  not  mentioned  in  the  deed  of 
29lh  October,  l»;iG,  and  iherefure,  this  deed  is  no  evidence  of  assent  to  that 


^293] 


PTRON   VS.    MOOD.  535 


sale.  The  assent  of  a  cestui  que  Irnst,  to  a  sale  by  his  trustee,  must  be  a 
specific  act,  not  a  matter  of  implication.  The  execution  of  the  power,  and  the 
act  of  assent,  must  be  one  contemporaneous  transaction. 

5.  Because  the  deed  of  29th  October,  1836,  was  a  fraud  on  the  first  deed, 
and  could  not  operate  to  destroy  the  rights  vested  under  the  first,  either  by  an 
actual  conveyance  of  those  rights,  or  an  enlargement  of  the  power  to  sell. 

6.  Because  the  deed  of  29th  October,  1S36,  is  not  only  ^fraudulent,  but  r^nqi 
void  for  uncertainty  and  inconsistency,  or  if  it  can  have  a  legal  operation,   L 
contirms  the  rights  vested  in  the  minor  children  under  the  first  deed. 

7.  Because  Simons  did  not  know  of  the  sale  to  Mood,  and  therefore,  as 
matter  of  fact,  never  assented  to  that  sale.  He  died  the  day  before  the  bill  of 
sale  was  purported  to  be  executed,  and  was  no  party  to  it. 

8.  Because  the  bill  of  sale  executed  by  Redheimer,  in  possession  of  Mood, 
was  on  its  face  ante-dated,  so  as  to  be  embraced  within  the  period  prior  to  the 
death  of  Simons,  and  a  material  alteration,  or  erasure,  in  a  deed,  is  presumed 
to  have  been  done  by  the  party  in  possession,  and  the  question  of  fraud  was 
one  of  fact  which  should  have  been  submitted  to  the  jury. 

9.  Because  Mood's  title  was  a  fraud,  legally  and  morally,  in  law  and  in  fact, 
on  the  vested  rights  of  the  minor  children  under  the  first  deed,  covered  by  the 
pretence  of  the  execution  of  a  power. 

10.  Because  the  delivery  of  the  deed  of  sale  with  the  guaranty  from  Red- 
heimer to  Mood,  took  place  in  March,  1837,  as  is  evident  on  its  whole  face. 
The  delivery  of  the  deed  of  sale,  and  the  guaranty  endorsed  on  it,  were  simul- 
taneous acts,  and  the  guaranty  is  dated  in  March,  1837.  The  sale  was  for 
cash.  The  guaranty  was  required  before  the  money  was  paid.  The  whole 
transaction  intended  to  be  in  execution  of  the  power,  took  place  in  March, 
1837,  when  no  power  to  sell  existed,  and  no  assent  could  be  given. 

11.  Because  the  transaction,  independent  of  its  being  a  moral  fraud,  was  one 
practiced  by  a  trustee  on  his  cestui  que  ii-usis,  with  a  view  to  sell  their  property 
by  the  fraudulent  execution  of  a  power,  and  without  the  intervention  of  the 
Court  of  Equity. 

12.  Because  Mood,  the  defendant,  was  a  purchaser  with  notice  of  the  fraud, 
and  of  the  rights  which  were  defrauded. 

13.  Because  his  Honor  told  the  jury  to  find  a  verdict  for  the  defendants  oa 
the  facts. 

14.  Because  the  verdict  was  against  the  whole  law  and  the  facts  of  the  case. 

*  Curia  per  O'Neall,  J.  The  argument  in  this  case  has  been  r^^joqc 
rested  on  the  ground,  that  the  l^gal  estate  of  the  trustee  was  '- 
divested,  and  the  trust  fully  executed,  and,  therefore,  his  conveyance  was 
inoperative.  There  seems  to  me  to  be  some  very  mistaken  views  of  our 
decisions  prevalent  at  the  bar.  They  perhaps  arise  from  all  the  decisions 
not  being  yet  reported  ;  and  possibly  from  general  expressions  contained  in 
some  of  the  opinions  delivered  by  myself.  I  know  no  better  mode  of 
putting  the  matter  in  a  i)roper  point  of  view,  than  first,  by  giving  an  ex- 
tract from  my  opinion  delivered  in  1832,  in  the  case  of  PorcAe?- vs.  Gist, 
which  had  the  concurrence  of  Johnson  and  Harpkr,  the  other  Judges 
of  the  Court  of  Appeals,  and  then  recur  to  the  cases  of  Pringle\s.  Allen, 
and  Ford  vs.  Caldwell,  and  place  them  in  their  proper  points  of  view. 

In  Purcher  vs.  Gii<t,(a)  one  of  the  questions  made  in  the  Court  of 
Equity,  was,  whether,  under  an  ante-nuptial  settlement,  conveying  to 
trustees,  for  the  joint  use  of  Imsband  and  wife  for  life,  after  the  death  of 
either  to  the  use  of  the  survivor,  and  after  the  death  of  the  survivor,  to 
the  use  of  the  issue  of  the  marriage,  personal  estate  in  the  possession  of 

(a)  MS.,  Charleston,  1832.       An. 


536  CHARLESTON,  FEBRUARY,  1842.      VOL.  II.  [*295 

the  wife  was  liable  to  be  seized  in  execution  for  her  debts  contracted  after 
she  was  discovert  ?     In  reference  to  that  question  it  was  said,  "  it  is  true, 
the  ftafute  of  uses  applies  altogether  to  trust  in  land,  and  that  makes  one 
distinction  between  trusts  of  real  and  personal  estate      In  the  former,  if 
the  trust  is  not  executory,  or  if  it  is  not  necessary  to  preserve  the  trust, 
that  the  legal  estate  should  remain   in  the  trustee,  the  statute  executes 
the  trust  so  soon  as  the  deed  is  executed,  and  the  legal  estate  vests  in 
cestui  que  use.   In  personal  estate,  the  legal  estate  remains  in  the  trustee, 
until  he  executes  the  trust  by  delivering  the  possession  to  one  cajyable 
of  holding  in  himself  or  herself,  a  legal  estate  in  property  to  the  extent 
of  the  interest  intended  by  the  deed  to  be  conferred.     If  the  estate  is  to 
the  use  of  a  married  woman,  the  legal  estate  remains  in  the  trustee, 
during  her  coverture,  for  she  is  incapable  of  herself  to  hold  a  legal  estate 
in  personalty  in  possession,  which  would  not  vest  in   the  husband.     An 
estate  to  the  joint  use  of  husband  and  wife  during  life,  may,  in  order  to 
preserve  the  trust,  not  be  executed  by  the  delivery  of  the  possession  to 
^OQci  "^'^^^^  husband.     But  after  a  feme  is  discovert,  the  reason   no 
-'  longer  exists,  why  the  trust  should  not  be  regarded  as  executed 
to  the  extent  of  the  estate  intended  to  be  coif  erred  on  her.''''    In  Prin- 
gle  vs.  Allen,  1  Hill's  C.  R.  135,  the  same  question,  under  similar  cir- 
cumstances, was  presented  to  the  Court  of  Appeals,  and  received  from 
the  Court  the  same  answer  which  was  given  in  Porcher  vs.  Gist.     A 
trust  in  personalty,  is  a  mere  bailment,  and  looking  to  the  law  on  that 
subject,  the  whole  difBculty  is   removed.      The   bailor   has   a   general 
property,  the  bailee  a  qualified  one.     So  a  trustee  and  cestui  que  trust 
in  personalty,  the  trustee  has  a  general  property,  and  the  cestui  que  trust, 
the  qualified  property  ;  and  when  to  his  qualified  right  of  property,  pos- 
session is  added,  it  is  complete  to  the  extent  of  the  interest  carved  out  by 
the  deed.     Both  are  legal  estates,  and  either  might  maintain  trover  for  the 
conversion  of  the  chattel  by  a  stranger,  as  was  decided  in  Watson  vs. 
Pitts,(a)  at  Columbia,  May,  1831.     This  explanation  will,  I  hope,  make 
the  principle  on  which  the  Court  has  proceeded  palpable.     In  Ford, 
trustee,  vs.  Caldicell,{b)  the  deed  there,  as  that  Jiere,  was  post-nuptial, 
and  conveyed  to  the  joint  use  of  husband  and  wife  for  life,  not  subject  to 
their  del)ts,  and  aftc^r  the  death  of  either,  to  the  use  of  the  survivor  for  life, 
and  after  the  death  of  the  survivor,  to  the  use  of  the  children  of  the  mar- 
riage.    From  the  words  of  the  deed  it  was  plain,  that  the  actual  posses- 
sion of  the  custui  que  trust  of  the  slaves,  was  to  accompany  the  trusts. 
The  deed  was  made  by  the  husband,  he  and  his  wife  were  alive,  and  he 
had  convoyed  the  slave  to  the  defendant's  intestate.     Speaking  of  that 
state  of  fact.s,  3  Ilill,  249,  I  said,  "I  hold  the  trust  was  executed  in  the 
husliand,  at  least  for  his  life.     For  according  to  the  deed,  be  was  entitled 
to  the  i)Ossession  of  the  slave  ;  having  this,  he  had  both  the  legal  and 
equitable  estate  for  his  life.     For  the  trustee  had  nothing  to  do  with  it 
during  this  time;  he  had  delivered  the  slave  to  one  who  was  under  no 
legal  disabilty  ;  this  was  equivalent  to  a  conveyance  to  him  for  the  time 
he  was  to  ))ossess  it.     For  the  condition  annexed  to  the  trust,  not  to  be 
subject  to  the  del)ts  or  contracts  of  liusl)atid  and  wife,  is  void.     The  hus- 
band, having  Ix.th  the  legal  and  equitable  estate,  could  transfer  it,  which 

(ri)  Infra,  249.     An.  (t)  3  Hill.  248.     An. 


*296]  PYRON  vs.   MOOD.  537 

he  did."  These  observations,  when  read  in  connection*  with  the  r^oq'r 
case,  are  readily  understood.  They  are  the  views  of  a  Laiv  Court,  '- 
applied  to  the  facts  before  them.  The  general  projierty  was  in  Ford, 
trustee  ;  but  lie  parted  with  the  right  to  possess  it  to  the  rp><fui  qve  trusts, 
Swift  and  wife,  for  lite.  At  law  the  wife's  being  and  rights  are  merged 
in  the  husband,  and  hence  his  possession  for  the  joint  use  of  himself  and 
wife  for  life,  made  the  property,  for  that  time,  his  entire  qualified  legal 
estate,  which  he  conveyed  to  Chur,«and  which  the  trustee  al  law  could 
not  dispute.  In  equity,  if  the  purchaser  had  notice  of  the  trusts,  the 
rights  of  the  wife  might  poi^sibly  be  protected. 

These  explanations  are  made  to  place  this  interesting  subject  in  its 
proper  point  of  view.  In  the  case  before  us,  there  is  really  no  difficulty. 
It  is,  in  point  of  fact,  a  suit  at  laio,  for  a  supposed  breach  of  trust,  in 
a  sale  made  by  a  trustee.  The  redress  of  this  injury,  (if  there  is  any,) 
belongs  to  another  forum.  The  conveyance  here,  was  to  the  joint  use  of 
the  husband  and  wife  for  life,  upon  the  death  of  either,  to  the  use  of  the 
survivor,  and  after  the  death  of  both,  to  the  use  of  the  children  of  the 
marriage,  with  a  power  to  sell  and  reinvest,  at  the  request  of  husband 
and  wife  or  the  survivor  of  them.  The  slaves  were  in  the  possession  of 
Simons  and  wife  during  their  joint  lives  ;  the  wife  died  and  the  husband 
by  deed  surrendered  his  life  estate  to  the  trustee,  for  the  use  of  the 
children  of  the  marriage,  and  requested  the  trustee  to  sell  the  said 
negroes  and  invest  the  nett  proceeds  (after  paying  the  debts  and  funeral 
expenses  of  Mrs.  Simons,)  in  other  property  for  the  children,  and  to  have 
them  educated  out  of  the  interest  and  income,  if  possible  ;  if  not,  to 
apply  so  much  of  the  share  of  each  to  that  purpose  as  might  be  neces- 
sary. Under  this  authority,  the  trustee  sold  on  the  2d  of  November,  and 
Charles  Simons,  the  grantor,  died  on  the  9th.  After  this  statement 
there  can  be  no  doubt  that  the  purchaser's  title  is  good.  For  the  trus- 
tee had  not  only  a  legal  estate  in  the  property,  but  he  had  also  a  power 
to  sell,  and  at  law  the  title  cannot  be  disputed.  If  his  power  was  im- 
properly applied,  fraudulently  used,  or  uimecessarily  exercised,  it  may  be 
redressed  in  Equity  against  the  trustee  ;  and  if  the  purchaser  "had  r^oqo 
notice,  he,  too,  may  there  be  reached.     The  motion  is  dismissed.   ^ 

Richardson,  Evan.«,  Butler,  and    Wardlaw,  JJ.,  concurred. 

Thompson,  for  the  motion.     Kunhardt,  contra. 
See  Sp,  Eq.  591.     An. 


IN  THE  COURT  OF  3. 


WiLLARD  Watson,  Trustee,  vs.  ED^YARD  Pitts. 
Before  Richardson,  J.,  Newberry,  Spring  Terra,  1831. 

This  was  an  action  of  trover  to  recover  certain  negroes  and  other  property  which 
■were  sued  for  by  the  plaintiff,  as  trustee  of  Ann  Barlow.  The  plaintiff  derived 
his  title  to  the  property  sued  for  from  John  Barlow,  the  husband  of  said  Ann.     It 


538  CHARLESTON,  FEBRUARY,  1842.      VOL.  II.  [*298 

appeared  that  Jolm  Barlow,  in  consideration  of  marriage,  in  the  year  1808  con- 
veyed the  negroes  and  other  property  in  dispute  to  William  Shaw,  Esq.,  his  heirs 
and  assigns,  in  trust  for  the  use  of  his  wife  Ann,  during  her  life,  and  after  the 
death  of  the  husband,  then  to  vest  absolutely  in  his  wife  Ann,  as  the  Court  under- 
stands the  deed,  but  as  plaintiff's  counsel  supposes,  the  legal  title  to  said  property 
and  negroes  is  still  vested  in  the  trustee  or  his  assigns.  Wm.  Shaw  accepted  the 
trust,  and  continued  to  act  down  to  1816,  when  he  assigned  the  trust  by  an  en- 
dorsement on  the  trust  deed  to  Willard  Watson,  the  plaintiff.  Shaw  died  in  1821 
or  1^22.  John  Barlow,  some  time  after  the  death  of  Shaw,  departed  this  life, 
leaving  his  widow,  Ann,  alive.  After  the  death  of  .1.  Barlow  and  W.  Shaw,  Ann 
Barlow  and  Willard  Watson,  the  plaintiff,  applied  to  the  Court  of  Equitv,  in  1829, 
and  the  plaintiff  was,  by  the  order  of  that  Court,  appointed  trustee  in  the  room  of 
Shaw,  deceased,  and  then  the  property  was  demanded  and  sued  for  by  plaintiff, 
in  September,  1829.  So  that  the  only  question  for  the  Court  now  to  determine  is, 
in  whom  was  the  legal  title  to  the  property  sued  for  at  the  time  this  suit  was 
brought?  If,  as  the  plaintiff  supposes,  by  the  terms  of  the  deed  it  was  in  him, 
the  nonsuit  must  be  set  aside.  But  if  in  the  widow,  Ann  Barlow,  from  the  death 
of  her  husband,  as  the  Court  held,  the  nonsuit  is  to  be  confirmed. 

Plaintiff  appeals,  on  the  grounds, 
*2991       ^'    ■'''^'^^^*  from  the  case  made  by  the  evidence,  the  legal  title  to  the  pro- 
-'  perty  sued  for  was  in  plaintiff  as  trustee,  and  not  in  Ann  Barlow,  as  held 
by  the  Court  below. 

2.  Because  the  parties  had  fixed  the  construction  of  the  deed  as  vesting  the 
legal  title  of  said  property  in  the  plaintiff. 

3.  Because  Ann  Barlow  herself  had  admitted  the  legal  title  to  the  property  in 
dispute  to  be  in  the  plaintiff,  and  procured  him  to  be  appointed  her  trustee  by  the 
Court  of  Equity,  as  to  the  pro^Derty  in  dispute,  after  the  death  of  John  Barlow, 
her  husband. 

Curia,  per  Johnson,  J.  In  Jones  vs.  Coles, (a)  decided  during  the 
present  sitting,  it  was  decided,  upon  very  satisfactory  principles,  (if  it 
bad  been  i)Ossible  to  consider  tlie  question  doubtful,)  that  any  one  having 
property(6)  or  the  right  of  possession,  might  maintain  trover  for  its 
wrongful  conversion  by  a  stranger  :  and  I  refer  to  that  case  for  the  doc- 
trine of  law.  The  deed  from  John  Barlow  to  William  Shaw,  conveys 
the  legal  property  of  the  negroes  in  dispute,  in  appropriate  legal  terms, 
and  it  is  declared  to  be  "to  the  use  of,  and  in  trust  nevertheless,  for  the 
sole  use,  benefit  and  behoof  of  the  said  Ann,  from  this  date,  for  and 
during  the  term  of  her  natural  life."  It  is  true,  there  is  no  disposiHoa 
made  of  the  property  after  the  termination  of  Mrs.  Barlow's  life  estate, 
but  according  to  the  legal  effect  of  the  deed,  the  property  is  in  Shaw, 
until  her  death  (for  the  statute  for  transferring  uses  into  possession,  is 
limited  to  real  estate,)  and  it  is  necessary  that  the  legal  property  should 
abide  in  him,  to  enable  him  to  fulfil  the  trust  declared  in  the  deed.  A 
conveyance  in  trust  was  necessary  to  obviate  the  marital  rights  of  the 
liusbiind,  wiiich  would  have  arisen  out  of  a  direct  conveyance  to  herself — 
and  as  long  as  she  lives  the  same  necessity  will  exist,  as  she  may  again 
take  a  husljaiul.  Whether,  therefore,  we  consider  the  rights  of  Shaw,  in 
reference  to  the  legal  eO'ects  of  the  deed,  or  the  trusts  executed  under  it, 
the  legal  estate  would  have  abided  in  him  had  he  been  living.  The  Act 
of  the  Legislature  expressly  authorizes  the  Court  of  Chancery  to  substitute 
a  trustee  for  one  who  is  deceased,  where  no  ))rovision  is  made  in  the  deed 
or  will  for  that  event ;  and  all  the  formula  of  that  Act  were  observed  in 
the  order  substituting  the  pluiniill"  in  the  place  of  Shaw.     The  assignment 

(fl)  MS.,  Columbia,  1831.     An.  (&)  See  2  Rich.  80  ;  2  Sp.  181. 


*299]  DESCOTTES    &   o'dRISCOLL   VS.    TALVANDE.  539 

made  by  Shaw  was  void,  for  want  of  a  power  to  that  effect  in  the  deed. 
But  uncler  the  order  of  Chancery,  all  powers  which  he  had,  were  trans- 
ferred to  the  plaintiff. 

We  are  therefore  of  opinion  that  the  motion  should  be  granted — and  it 
is  accordingly  so  ordered. 

O'Neall  and  Harpee,  J  J.,  concurred. 


*Descottes  &  O'Driscoll  vs.  Ann  Talvande.  [*300 

Where  one  died  intestate,  seized  and  possessed  in  fee  simple  of  a  house  and  lot 
in  the  city  of  Charleston,  leaving  surviving  him  as  his  next  of  kin  a  wife  (the 
defendant,  who  is  an  alien)  and  nephews,  born  of  alien  sisters,  and  a  brother, 
a  native-born  subject  of  the  United  States,  but  who  has  resided  in  France  for 
the  last  thirty  years — in  an  action  of  trespass  to  try  titles  to  the  said  freehold, 
between  the  nephews  (sons  of  the  alien  sisters  of  the  deceased)  and  the  wife, 
it  was  Held,  that  upon  the  death  of  the  intestate,  the  freehold  descended  upon 
the  brother  of  the  intestate  ;  that  he  alone  could  take  the  estate  under  the 
statutes  of  South  Carolina. 

Before  Richardson,  J.,  Charleston,  January  Terra,  1841. 

The  following  able  report  of  his  Honor  who  tried  the  case  in  the  court 
below,  is  given  zn  extenao,  that  the  facts  of  this  important  case  may  be 
fully  understood. 

"  Trespass  to  try  title  to  a  lot  of  land  in  Charleston,  as  well  as  for 
damages.  The  freehold  was  well  proved  to  have  been  in  Andrew 
Talvande,  by  deeds  of  conveyance  to  himself,  and  by  possession  from 
1819  to  1834,  when  he  departed  this  life,  leaving  the  defendant,  his 
widow,  an  alien  born  in  St.  Domingo.  He  left,  also,  several  near  rela- 
tions, all  aliens,  but  a  brother  born  in  New  York,  and  a  resident  of 
France  for  more  than  thirty  years.  Edward  and  Augustus  Descottes, 
two  of  the  plaintiffs,  were  the  sons  of  his  sister,  Mrs.  Descottes,  an  alien, 
still  alive;  and  William  O'Driscoll,  the  other  plaintiff,  was  the  son  of  his 
sister  Mrs.  O'Driscoll,  who  died  before  her  brother,  Andrew  Talvande, 
and  was  an  alien  at  her  death.     The  plaintiffs  were  citizens. 

The  premises  remained  in  the  possession  of  the  defendant  ever  since 
the  death  of  Mr.  Talvande.  They  were  proved  to  be  worth  $1,000  rent 
per  annum.  Mrs.  Talvande  claimed  the  })remises  in  her  own  right — 1st, 
by  possession  ;  2,  as  a  resulting  trust,  (her  services  and  money  having 
contributed  largely  to  the  purchase  ;)  3d,  as  a  sole  trader,  (having  carried 
on  a  lucrative  female  school  all  the  time,  in  her  own  name;)  4th,  as 
virtually  a  citizen,  under  the  Act  of  1785,  and  therefore  holding  as  a 
tenant  in  common;  5th,  as  virtually  a  denizen,  under  the  Act  of  1799, 
and  so  capable  of  holding  lands,  &c.  ;  6th,  under  the  Act  of  1807,  which 
confirms  the  titles  made  by  aliens  ;  7th,  *under  the  Act  of  1828, (')  r.-|cqAi 
as  preventing  such  lands  from  being  escheated,  and  rendering  the  ^ 
■widow,  though  an  alien,  capable  of  taking  by  virtue  of  the  act  of  distri- 
buiions ;  and  under  the  Act  of  1835,  as  releasing  tlic  rights  of  the  State 

(h)  G  Stat.  363.     An. 


640  CHARLESTON,  FEBRUARY,  1842.      VOL.  II.  [*301 

to  her.  Among  these  and  other  grounds  against  the  plaintiffs,  it  was 
urged  that  E.  and  A.  Descottes  could  not  take  under  the  Act  of  dis- 
tributions, because  they  claim  through  an  alien  sister  of  the  intestate, 
their  mother  being  still  alive.  That  the  other  plaintiff,  W.  O'Driscoll, 
could  not  take,  because  Armand  Talvande,  the  brother  of  intestate,  being 
alive,  a  native  citizen,  and  nearer  of  kin,  as  in  the  case  of  E.  and  A. 
Descottes ;  so  in  this  case,  the  brother  native  born  would  take,  in 
exclusion  of  nephews  claiming  through  the  alien  sisters  of  the  intestate. 
That  thus,  as  the  right  of  E.  and  A.  Descottes  as  distributors,  living 
their  alien  mother,  could  not  be  supported  ;  (see  the  judgment  of  the 
S.  C,  IJ.  S.,  9  Wheaton,  .354,  McCrary  vs.  Sumvierville  £  Rowe  ;)  so, 
by  parity  of  reasoning,  O'Driscoll  could  not  support  his  right,  through  aa 
alien  mother  deceased,  living  a  native  born  brother  of  the  intestate. 

It  is  unnecessary  to  notice  further  the  facts  or  grounds  of  this  well 
contested  and  important  case.  The  grounds  of  the  appeal  that  followed 
the  verdict  are  presented. 

I  charged  the  jury,  that  Mrs.  Talvande,  being  an  alien  born  and  hav- 
ing never  been  made  a  citizen  or  denizen  expressly,  could  not  have  been 
virtually  the  one  or  the  other,  under  any  of  the  Acts  relied  upon,  and 
therefore  could  take  no  part  of  the  land  by  mere  operation  of  law,  though 
she  might  hold  Ijy  purchase.  That  her  long  possession,  jointly  with  Mr. 
Talvande,  inured  to  his  benefit  as  the  freeholder,  under  written  titles  to 
himself.  That  her  capacity  as  mistress  of  a  school,  though  conducted 
exclusively  in  her  own  name,  did  not  make  her  a  sole  trader  in  law. 
That  the  fruits  and  contributions  of  her  highly  meritorious  exertions  be- 
longed to  her  husband,  and  would  not  create  such  a  resulting  trust  to  her 
as  a  court  of  law,  at  least  could  enforce.  That  it  was  plain,  then,  that 
the  conveyance  of  the  lot  to  Mr.  Talvande  was  unqualified,  and  he  the 
exclusive  freeholder  at  the  time  of  his  death,  October,  1834.  Who,  then, 
were  his  heirs,  or  distributees,  under^  the  Act  of  distributions,  was  the 
questiou  for  the  Court  and  jury. 

♦^091  *Mrs.  Talvande,  being  unfortunately  still  an  alien,  could  take 
^  no  part  under  the  Act,  or  in  dower.  The  plaintiffs  might,  then, 
well  maintain  their  action,  provided  they  were  the  proper  disbutees  under 
the  Act  of  1191.  Upon  the  claim  on  their  part,  I  charged  the  jury,  that 
I  was  bound,  by  the  authority  of  the  decision  of  the  Supreme  Court  of 
the  United  States,  in  the  case  of  McCrar-y  vs.  Summerville,  to  say  that 
the  law  was  opposed  to  the  right  claimed  by  E.  and  A.  Descottes,  be- 
cause their  alien  mother  was  still  alive.  I  thought  this  a  stronger  case 
because  a  native  born  brother,  Armand  Talvande,  stood  as  undoubted 
heir  to  the  whole  or  part,  and  would  prevent  the  possibility  of  any  escheat 
of  the  land  to  the  State.  lie  stood  as  the  heir  at  common  law,  and  his 
rights  were  not  to  be  infracted  but  by  the  unavoidable  constructions  of 
the  statute. 

That,  in  regard  to  the  right  of  William  O'Driscoll,  the  nephew,  by  a 
deceased  alien  sister,  the  brother  of  intestate  being  alive,  I  held  the  pro- 
per construction  of  the  Act  questionable.  The  right  of  his  brother  to 
one  half,  or  the  whole  of  the  land,  could  not  be  questioned  ;  and  stand- 
ing as  he  did  upon  both  the  spirit  and  letter  of  the  Act,  there  was  little 
room  for  a  lil»eral  construction  in  favor  of  any  other  party,  plaintiff  or 
defendant.     Such  constructions  were  misapplied,  when  they  would  infract 


*302]  DESCOTTES   &  o'dRISCOLL  VS.   TAL7ANDE.  541 

vested  riirhts  to  property.  And,  iiiasmucli  as  the  Act  did,  in  terras,  give 
to  the  nephew  only  the  share  to  wliich  his  deceased  parent  would  have 
been  entitled  if  living,  it  was  but  by  a  lil)eral  construction,  in  virtue  of 
and  under  the  statute  of  11  and  12  William  3,  that  O'Driscoll  could  be 
made  a  distributee  at  all.  Claiming,  as  he  did,  through  an  alien  mother 
who  could  have  taken  no  part,  I  thought  it  the  safer  construction  of  the 
Act,  to  give  to  the  brother,  Armand  Talvande,  the  whole  estate,  as  the 
only  one  clearly  entitled. 

If  the  jury  thought  with  the  Court,  they  would  of  course  find  for  the 
defendant ;  but  if  they  found  for  the  plaintiffs,  they  should  add  such 
damages  as  their  sound  discretion  pointed  out.  That  was  a  question  for 
themselves.  They  returned  a  verdict  for  the  defendant,  and  the  plaintiffs 
appeal." 

1st.  That  his  ITonor  erred  in  charging  the  jury  that  the  ^children  of  r*.ir.o 
Madame  Dcscottes  could  take  no  share  of  the  real  estate  of  Andrew  L 
Talvande. 

2d.  That  the  Court  erred  in  stating  to  the  jury  that  Mr.  O'Driscoll,  the 
Dephew  of  Mr.  Talvande,  had  no  share  in  his  estate. 

od.  That  consequently  there  was  error  in  the  charge  that  the  entire  fee 
simple  of  the  estate  vested  in  Aruiand  Talvande,  supposed  to  be  absent. 

4th.  That  in  other  particulars  the  Judge  erred,  especially  in  stating  that 
the  jury  were  authorized  to  give  nominal  damages,  in  face  of  the  uncontradicted 
testimony  that  the  premises  were  occupied  by  the  defendant,  and  that  a 
reasonable  rent  for  the  premises  was  one  thousand  dollars  per  annum. 
Flaintiti's  insist  that  where  mesne  profits  are  distinctly  proved,  the  jury  is  not 
authorized  to  disregard  the  evidence,  and,  in  viulation  of  their  oaths,  "true 
verdict  to  render,  according  to  evidence,"  to  give  nominal  mesue  profits,  where 
actual  rent  has  been  enjoyed  by  defendant. 

Bentham  and  Hunt,  solicitors  for  appellants. 

Petigru  and  Lesesne,  contra. 

Curia,  per  O'Neall,  J.  The  4th  clause  of  the  first  section  of  the 
Act  of  '91,  1  Faust,  24, (a)  provides,  "  If  the  intestate  shall  not  have  a 
lineal  descendant,  father  or  mother,  but  shall  have  a  widow,  and  brothers 
and  sisters,  or  brother  or  sister,  of  the  whole  blood,  the  widow  shall  be 
entitled  to  one  moiety  of  the  estate,  and  the  brothers  and  sisters,  or 
brother  or  sister,  to  the  other  moiety,  as  tenants  in  common.  The 
children  of  a  deceased  brother  or  aider  shall  take  among  them,  respec- 
tively, the  share  xcliich  their  respective  ancestors  would  have  been 
entitled  to,  had  they  survived  the  intestate. 

The  Act  of  '97,(6)  amending  the  Act  of  '91,  provides  for  the  case 
where  the  wife  be  dead,  and  lets  in  the  brothers  and  sisters,  in  that  case, 
to  participate  in  the  inheritance,  and  prescribes  '•  that  the  issue,  if  any, 
of  any  deceased  brother  or  sister,  if  more  than  one,  bhall  take  among 
themselves  the  same  share  ivhich  their  father  or  mother,  if  livinj,  would 
have  taken  ;  and  if  but  one  such  issue,  then  he  or  she  shall  take  the 
share  xchit  h  his  or  her  father  or  mother  would  have  taken  if  living.'''' 
1  Brev   Dig.  Tit.  101,  sec.  20,  p.  427. 

*Considering  the  plaintiff's  case  under  these  Acts  alone,  and  r^oQA 
giving  to  the  alienage  of  the  wife  the  same  effect  as  her  death,  (as  '- 
to  the  correctness  of  which  I  think  there  is  great  room  to  doubt,  but  as 
that  is  the  best  view  for  the  plaintiffs,  it  may  be  conceded  for  the  present,) 

(a)  5  Stat.  162.     An.  (b)  5  Stat.  30.3.     An. 


542  CHARLESTON,  FEBRUARY,  1842.      VOL.  II.  [*304 

it  would  be  plain  that  they  could  not  recover ;  for  the  Descottes  are  not 
the  children  of  a  deceased  brother  or  sister,  tlieir  mother  being  still 
alive,  but  an  alien  ;  and  O'Driscoll  could  not  recover,  because  his  mother 
died  an  alien,  and  if  alive  could  not  take  any  portion  of  the  intestate's 
estate. 

It  was,  however  ably  contended,  that  under  the  Stat.  11  and  12  W.  3, 
c.  6,(«)  which  is  of  force  in  this  State,  the  plaintiff  O'Driscoll  might  take 
with  the  brother  of  the  deceased.  It  provides,  "  whereas,  divers  persons 
born  within  the  King's  dominions  are  disabled  to  inherit,  and  make  their 
titles  by  descent  from  their  ancestors,  by  reason  that  their  fathers  or 
mothers,  or  some  other  ancestor,  (by  whom  they  are  to  derive  their 
descent,)  was  an  alien,  and  not  born  within  the  King's  dominions  :  for 
remedy  whereof,  be  it  enacted,  that  all  and  every  person  or  persons,  being 
the  King's  natural  born  subject  or  subjects,  within  any  of  the  King's 
realms  or  dominions,  shall  and  may  hereafter  lawfully  inherit  and  be 
inheritable  as  heir  or  heirs  to  any  honors,  manors,  lands,  tenements,  or 
heretiitaments,  and  make  their  pedigrees  and  titles  by  descent  from  any 
of  their  ancestors,  lineal  or  collateral,  although  the  father  and  mother,  or 
fathers  and  mothers,  or  other  ancestors  of  such  person  or  persons,  by, 
from,  through  or  under  whom  he,  she  or  they  shall  or  may  make  or  derive 
their  title  or  pedigree,  were  or  was  or  is  or  are  or  shall  be  born  out  of 
the  King's  allegiance,  and  out  of  his  ^Majesty's  realms  and  dominions,  as 
freely,  fully  and  effectually,  to  all  intents  and  purposes,  as  if  such  father 
or  mother,  or  fathers  or  mothers,  or  their  ancestor  or  ancestors,  by,  from, 
through  or  under  whom  he,  she  or  they  shall  make  or  derive  their  title  or 
pedigree,  had  been  naturalized  or  natural  born  subjects  within  the  King's 
dominion — any  law  or  custom  to  the  contrary  notwithstanding." 

This  statute,  it  seems  to  me,  will  not  help  the  plaintiffs  ;  for  it  only 
intends  to  remove  the  obstacle  to  the  title  of  one  claiming  as  heir  to  the 
*^0o'l  P^^^*^"  '^^t  seized,  that  he  is  oljliged  *to  trace  his  descent  through 
-•  an  alien  ancestor.  If  the  intestate  had  not  left  a  brother,  a 
native  born  citizen  of  the  United  States,  then  the  plaintiff,  O'Driscoll, 
might  very  well  have  claimed  as  heir,  tracing  his  title  by  descent, (6)  as  next 
of  kin,  through  his  mother,  and  being  preferred  on  account  of  his  citizen- 
ship before  tlie  alien  sister  of  the  deceased.  But  he  cannot  now  so 
claim,  because  there  is  one  nearer  in  blood,  who  is  able  to  take  the 
inheritance.  The  title  of  O'Driscoll  is  dependant  upon  the  capability  of  his 
motiier,  and  is  wholly  dcjirived  from  her.  Levy  vs.  Mc Carter,  6  Peters, 
102.  lie  does  not  come  in  as  heir,  but  as  one  who,  on  account  of  equity 
of  the  statute,  is  permitted  to  represent  his  mother.  As  she  could  not  be 
entitled  to  any  part  of  the  inheritance,  it  follows  that  her  representative 
can  be  entitled  to  nothing;  and  when  he  is  allowed  to  trace  his  descent 
through  her,  under  the  statute  of  Wm.  3,  he  cannot  claim,  as  next  of  kin, 
on  account  of  the  brother  being  nearer  in  blood  than  he  is.  This  is,  it 
seems  to  me,  the  true  construction  of  the  Acts  of  '91  and  '97,  and  the 
Btat.  11  and  12  W.  3,  c.  6,  when  construed  together,  and  in  pari 
vmteria.  Hut,  if  there  l)e  any  conflict  l)etweeu  their  provisions,  then,  so 
far  as  they  do  conflict,  the  Acts  of '91  and  '97  are  to  prevail. 

(a)  2  Stat.  r)82.     Sen  Shanks  vs.  Dupont,  Harper's  Eq.  1,  reversed  upon  writ  of 
error  in  thn  Piipreme  Court  of  the  U,  S.,  3  Pet.  242,  or  8  Curt.  395.     Ati. 
(f>)  1  Sp.  .^3(J      An. 


'305] 


ST.    PniLIP's   CHURCH   ad.o.    WHITE.  543 


If,  however,  O'Driscoll  was  entitled,  still  the  plaintifTs  must  fail  in  this 
case ;  for  the  Descottes  are  not,  in  any  event,  or  in  any  wise,  entitled  ; 
and  henee,  too  many  plaintiffs  being  before  the  Court,  they  cannot  suc- 
ceed.(a)  In  Hammond's  N.  P.  223,  it  is  said:  "The  consequence  of 
inattention  to  these  rules,  where  it  consists  in  joining  too  many  as  plain- 
tiffs, are  the  same  in  all  forms  of  action.  Where  the  defect  is  apparent 
upon  the  record,  the  defendant  may  demur,  arrest  the  judgment,  or  reverse 
it  by  error,  or  he  may  plead  the  general  issue,  and  thereby  succeed  at  the 
trial." 

The  motion  is  dismissed. 

Richardson,  Evans,  Butler,  Earlf.  and  Gantt,  JJ.,  concurred. 

This  case  was  argued  in  the  Appeal  Court,  at  Charleston,  first,  February  Term, 
1841.     It  was  held  under  advisement  until  February  Term,  1842. 

See  Ford  vs.  Ilindeman,  7  Rich.  166  ;  Keenan  vs.  Keenan,  7  Rich.  349  ;  Burnett 
vs.  Noble,  8  Rich.  Eq.  58.     An. 


*St.  Philip's  Church  ads.  John  White.  [*306 

The  books  of  a  tradesman  or  mechanic  are  admissible  in  evidence  only  to  prove 
the  performance  and  delivery  of  work  done  within  the  mechanic's  shop.  Where 
the  work  is  done  outside  of  his  shop,  or  on  the  premises  of  the  party  charged, 
such  as  building  or  repairing  a  house,  or  any  other  fixture,  there  can  be  no 
necessity  for  books,  for  the  work  is  apparent  and  palpable. 

In  the  City  Court  of  Charleston. — Tried  before  his  Honor  the  Recorder, 

July  Term,  1841. 

This  was  an  action  of  assumpsit  to  recover  an  account  for  laying  a  stone 
pavement  in  front  of  St.  Philip's  Church.  The  evidence  in  detail  is 
given,  together  with  the  Recorder's  charge  to  the  jury,  for  a  full  and 
proper  understanding  of  the  case. 

"Defence. — Work  not  done  in  a  workman-like  manner,  and  that  the 
city  council,  and  not  the  Church,  was  the  contracting  party  with  White. 

George  Tliompson,  sworn — Said  he  examined  the  stone  pavement  in  question  ; 
he  is  a  bricklayer,  and  a  judj^e  of  work  of  this  sort ;  it  appeared  to  be  very  well 
done  ;  thought  it  a  workman-like  job  ;  one  or  two  stones  liave  settled  ;  the  pave- 
ment is  rather  flat ;  no  water,  however,  can  lay  on  it ;  there  is  a  great  descent 
north  and  south  ;  it  has  a  descent  towards  the  street,  but  don't  show  it ;  he  ex- 
amined it  last  Thursday,  (two  days  before  ;)  $'J3'J  is  a  reasonable  charge  for  such 
work ;  there  are  fully  two  thousand  five  hundred  and  forty-four  feet  of  flagging. 

Cross-examined — lie  said  the  object  of  the  inclination  of  a  pavement  is  to  throw 
off  the  water  ;  the  water  runs  north  and  south,  and  off  to  the  street ;  never  saw 
water  settle  under  the  porch  ;  the  jiavement  is  two  and  a  half  inches  lower  on  the 
outer  than  the  inner  edge  ;  tlie  width  under  the  porch  is  twelve  or  fourteen  inches  ; 
the  eye  caunut  detect  any  slope  in  the  pavement,  unless  you  go  off  some  distance ; 
the  wall  of  the  church  is  about  two  liundred  feet ;  under  the  porch  the  width  of 
the  pavement  is  twelve  feet,  less  in  some  other  parts. 

//)  riply — He  said  the  pavement  is  a  curve ;  the  water  don't  settle  in  puddles 
so  as  to  annoy  passengers. 

John  ]Vhit&,  plaintiff,  introduced  his  books  of  original  entries  ;  the  entry  was 

(a)  1  Sp.  99  ;  1  Bail.  306.     An. 


5-i4  CHARLESTON,  FEBRUARY,  1842.      VOL.  II.  [*306 

^.,„_,  made  as  soon  as  the  work  was  finished.*     The  books  were  objected  to  ;  ob- 
J  jectiou  overruled.     Here  evidence  of  plaintiff  closed. 

DEFENCE. 

Charles  Parker,  sworn — Said  he  is  city  surveyor  ;  gave  White  directions  how  to 
proceed  with  this  work ;  he  was  called  upon  by  White,  after  the  work  was  fin- 
ished, to  measure  it  for  him  ;  he  refused  ;  his  work  did  not  correspond  with  his 
directions  ;  witness  told  the  mayor  he  would  not  measure  the  woik  ;  he  produced 
a  memorandum,  dated  19th  August,  1839,  detailing  particularly  the  defects,  with 
a  plat  of  the  pavement,  to  which  I  refer  as  part  of  his  evidence  ;  says  it  is  not  a 
workman-like  job  ;  it  ought  to  be  taken  up ;  White  knew  witness  represented  the 
city,  and  that  he  give  his  directions  as  such  ;  he  knew  he  could  not  be  paid  by 
the  city  without  his  certificate  ;  he  refused  to  give  it ;  White  ought  to  take  uji  the 
whole  of  this  work  to  make  it  a  good  job;  he  said  he  could  not  pretend  to  guess 
at  the  quantity,  knowing  there  were  curves. 

Crofs-exa mined — He  said  he  did  not  make  the  contract  with  White ;  he  had 
nothing  to  do  with  the  churcli ;  represented  the  city ;  the  custom  is,  in  sucli 
cases,  for  individuals  to  pay  the  workmen,  and  look  to  council  for  reimbursement 
of  their  portion ;  there  is  an  inclination  to  the  north ;  but  a  large  portion  to  the 
south  there  is  no  inclination  at  all ;  in  one  place  there  is  an  inclination  inwards 
to  the  wall. 

In  reply — He  said  he  supposes  the  pavement  could  be  taken  up  and  relaid  at 
from  five  to  seven  cents  per  square  foot ;  the  pavement  of  the  portico  was  laid 
before  he  laid  out  the  work  for  White  ;  don't  think  as  much  of  the  pavement 
ought  to  stand  as  that  table,  (pointing  to  the  table  in  court,)  to  do  it  in  a  practical 
way. 

Charles  P.  Frazer,  sworn — Said  he  was  at  the  time  clerk  of  the  commissioners 
of  the  streets  ;  the  city  got  work  of  this  kind  done  for  $2  20  per  square  yard  ;  the 
kind  of  work  White  did  commands  the  highest  price  ;  accompanied  Parker  on 
one  occasion  while  the  work  was  in  progress  ;  saw  Parker  make  White  take  up 
some  of  the  work ;  White  has  done  no  other  work  for  the  city,  except  some  cross- 
^of)Q-i  iiig  places ;  witness  called  on  Mr.  Trescot,  the  chairman  of  the  *vestry 
-'  of  the  church,  and  urged  him  to  have  this  work  done,  assuring  him  the 
city  would  pay  one-half  of  the  cost ;  the  custom  is,  sometimes,  for  the  city  to  pay 
the  mechanic  directly  ;  sometimes  to  pay  the  owner  of  the  premises  where  the 
work  is  done,  and  the  mechanic  looks  to  him ;  Parker  would  never  give  more  than 
one  certificate  ;   whoever  held  that  got  paid. 

William  BroklchaiJc,  sworn — Said  he  was  working  at  the  church  the  time  this 
work  was  done  ;  he  is  a  judge  of  such  work  ;  thinks  it  a  fair  job;  it  is  a  sub- 
stantial job  ;  done  in  a  workmanlike  manner  ;  thinks  it  worth  twenty-five  cents  a 
foot ;  he  has  passed  there  in  rainy  weather ;  has  been  caught  there  in  showers  ; 
never  saw  water  stand  there. 

Henri)  J.  JJurbi/,  sworn — Said  he  works  near  the  church  ;  travels  over  the  pave- 
ment six  times  a  day,  and  thinks  it  a  fair  job ;  passed  in  rainy  weather ;  was 
never  incommoded  ;  a  fair  pavement  for  throwing  oif  water. 

William  T.  White — Said  he  works  with  his  father;  has  frequently  done  work 
when  individuals  and  the  city  divided  expenses;  invariably  sends  the  bills  to 
iiidivitluals  ;  laid  a  great  many  pavements  in  Broad  street,  when  the  owners  and 
city  divided  the  expenses  ;  his  father  always  looked  to  individuals  for  payment. 

Rirhurd  YeaJon,  Esq.,  sworn — Said  he  was  a  member  of  council  for  one  year  ; 
the  usage  was  for  the  owners  to  apply  to  council  for  permissi(ni  to  lay  flag  stones, 
and  fr)r  tlie  city  to  pay  one-half  of  the  cost.  The  land  on  whiih  the  pavement 
was  lairl  was  admitted  to  l)elong  to  the  city,  having  been  conveyed  to  them  by 
deeil  l»t;foro  the  work  was  done. 

Jutward  AkCradij,  Esq. — Admitted  that  on  the  part  of  the  church  he  had  of- 
fered t.i  i.,-iy  oiM^-half  of  tlu;  bill,  and  tendered  the  amount  and  costs,  and  did  say 
if  re(iuired  would  ]iay  it  in  specie. 

William  Hell,  swurii — Said  he  has  seen  the  pavement ;  examined  it  particularly 
the  other  morning  ;  it  is  a  very  fine  job;  done  in  a  workmanlike  manner;  has 
seen  pavements  with  more  descent ;  this  throws   off  the  water  sufficiently  well ; 


*308]  ST.  rniLip's  church  ads.  white.  545 

never  found  water  lying  on  it ;  tlie  object  of  descent  is  to  throw  the  water  off;  it 
has  done  this. 

Here  the  testimony  closed. 

*A  motion  was  made  for  a  nonsuit,  on  the  ground  stated  in  [-:(:ooq 
the  notice  of  appeal,  which  was  refused,  and  the  case  went  to  the  L 
jury. 

The  Court  charged  the  jury  that  there  were  two  questions  for  them  to 
decide.  1.  Was  the  work  done  in  a  workman-like  manner  ?  2  Was  the 
defendant  liable  to  the  i)lainti(f,  and  if  so,  to  what  extent?  On  the  Grst 
question,  the  evidence  was  summed  up  and  submitted  to  them.  On  the 
second,  the  jury  were  told  they  could  derive  no  aid  from  custom;  if  any 
had  been  proved,  it  was  not  sufficiently  uniform,  or  of  sufficient  durntion, 
to  presume  that  this  contract  was  made  in  reference  to  it.  The  books  of 
the  i)laintiff  charged  the  work  to  defendant,  at  the  time  of  its  completion, 
and  it  appeared  to  the  Court,  from  the  evidence  of  Frazer,  that  it  was 
properly  so  charged,  and  that  the  church  was  the  contracting  i)arty  with 
White,  and  he  says  he  called  on  Mr.  Trescot,  the  chairman  of  the  vestry, 
and  urged  him  to  make  the  contract  with  White,  assuring  him  that  coun- 
cil would  defray  half  the  cost.  That  White  did  the  work,  was  not  denied. 
There  was  no  evidence  of  any  contract  with  the  city,  and  it  appeared  by 
account  sued  upon,  that  White  was  the  workman  of  the  church.  The 
evidence  on  this  point  was  summed  up  and  submitted  to  the  jury,  as  a 
question  of  fact.  They  found  a  verdict  for  plaintiff  for  the  full  amount 
of  his  demand. 

The  defendants  appealed  from  the  verdict  in  this  case,  and  moved  in  the 
Appeal  Court,  first,  for  a  nonsuit,  on  the  ground,  that  no  express  contract  was 
proved,  and  none  could  be  implied,  as  the  work  was  done  in  a  public  street, 
over  which  the  defendant  had  no  control,  and  could  not  have  prevented  its 
performance. 

And  failing  in  this  motion,  then  for  a  new  trial  on  the  following  grounds : 

1.  That  the  plaintiff's  books  were  incompetent  evidence,  and  ought  not  to 
have  been  admitted  to  prove  either  the  liability  of  the  defendant,  or  the 
measurement  of  the  work. 

2.  That  books  of  entry  are  competent  evidence  only  of  goods  delivered,  or 
jobs  done  in  the  shop  or  premises  of  the  shop-keeper,  tradesman,  or  mechanic. 

3.  That  defendants,  upon  the  testimony,  were   not  liable  *l'or  more   r*-.irt 
than  one-half,  in  any  event;  there  being  no  proof  of  a  custom,  such  as   ■-  '^ 
was  set  up  on  the  part  of  the  plaintiff,  to  entitle  him  to  recover  the  whole  from 
the  defendants. 

4.  That  the  verdict  was  contrary  to  law  and  evidence. 

Mc  Creadji,  for  the  motion,  said  the  church  did  not  deny  their  liability  to  pay 
one-half  of  the  price  of  the  work  done.  Tlie  question  is,  were  the  books  of  the 
plaintiff  admissible  ?  Were  they  competent  testimony  ?  Cited  2  Bay,  172  ;  2  lb. 
3ii2 ;  1  Brev.  105  ;  jailer's  books  have  been  excluded,  3  Brev.  251.  There  was 
no  necessity  for  his  books  ;  the  work  is  apparent,  and  will  speak  for  itself ;  2 
Brov.  127.  A  scrivener's  books  have  been  held  not  to  be  evidence,  and  the 
books  of  planters  are  excluded;  2  Brev.  157;  1  N.  &  McC.  151.  Note  books  are 
not  evidence  to  prove  a  special  contract.  In  Ferguson  vs.  Ford,  A.  D.  Ib2l3,  a 
party  can  only  prove  the  usual  items  of  a  merchant's  contract.  The  books  are 
incompetent  to  prove  an  item  for  cash  lent,  or  any  special  contract ;  1  N.  &  McC. 
130.  The  dictum  was,  that  shop-books  of  a  mechanic  are  evidence  to  prove  spe- 
cific articles  in  the  way  of  his  trade.  Loss  of  time  could  not  be  thus  proved  ;  1 
N.  <k  Me.  1S6.  Printer's  books  are  evidence  as  daily  memoranda,  when  no  other 
evidence  could  be  appealed  to  ;  1  N.  &  Mc.  43(5,  Deas  vs.  Darbtj.  Book  entries 
YoL.  1—36 


546  CHARLESTON,  FEBRUARY,  1842.      VOL.  II.  [*310 

prove  only  a  delivery.  1  P.  on  Obi.  was  cited  as  to  book  entries.  The  defend- 
ants, if  liable  at  all,  could  only  be  liable  for  one  hundred  and  forty-four  feet,  or 
twelve  feet  square,  at  $25 — $300.  Formerly  the  city  required  every  one  to  pave 
before  his  door ;  such  is  not  the  case  now. 

Yeadon,  contra,  contended  that  there  would  have  been  no  difficulty,  had  it  not 
been  for  the  fastidiousness  of  the  city  surveyor.  He  contended  that  this  evidence 
was  adnii^isible  as  evidence  from  necessity.  But  by  this  he  does  not  understand 
that  this  is  the  only  proof  which  can  be  received.  He  referred  to  1  N.  &  McC. 
136,  as  illustrative  of  his  views  as  to  the  nature  of  the  entry ;  the  charge  there 
was  for  one  hundred  and  ninety  days  work  and  labor ;  it  was  held  admissible  to 
prove  a  particular  job  of  work  done  and  articles  furnished.  In  1  N.  &  McC.  186, 
the  entry  is  a  memorandum  of  daily  transactions,  and  so  was  this  book.  1  N.  & 
^„, ,,  McC.  436,  was  when  the  liability  was  to  arise  from  something  *else  than 
^  the  delivery.  There  the  entry  was  inadmissible.  He  contended  the  book 
was  admissible,  because :  1,  it  was  liis  handwriting  ;  2,  according  to  the  course  of 
trade  ;  3,  as  daily  memoranda ;  and  4,  it  was  a  particular  job.  The  entry  was 
admissible,  if  not  to  prove  the  delivery,  yet  it  was  admissible  to  show  that  he 
never  looked  to  the  city.  This,  as  a  part  of  the  res  gesta,  was  admissible.  The 
usage  of  the  city  is,  where  a  man  will  flag  his  own  ground  they  will  pay  one-half. 
Throw  the  books  out,  and  still  there  was  enough  to  support  the  verdict ;  and 
hence  there  should  not  be  a  nonsuit  or  new  trial  ordered.  The  work  was  done 
before  the  church,  and  $100  paid  ;  they  ofl'ered  to  pay  one-half. 

Curia,  per  O'Xeall,  J.  The  only  ground  which  will  be  considered 
is  that  which  makes  the  question,  whether  the  plaiutiff''s  book  was  admis- 
sible to  prove  the  entry,  "  1839,  August  24th,  to  furnishing  and  laying 
2544  feet  of  stone  flagging,  curb  and  gutter  stone,  at  25  cents  per  foot, 
§636."  The  plaintifl'  is  a  stone  cutter,  and  stone  mason,  and  the  item 
set  out  above  is  a  part  of  a  running  account  against  the  defendants  for 
other  work  and  materials,  all  of  which  has  been  paid,  except  this  item, 
and  to  it  is  applicable  $100  paid  by  the  defendant  generally  on  the 
account. 

In  Slade  vs.  Tcatidnle,  2  Bay,  172,  the  court  ruled  that  the  book  of  a 
mechanic  was  competent  evidence  in  a  suit  brought  to  recover  for  work 
done  or  materials  furnished  in  the  way  of  his  trade.  The  reason  given 
for  the  admission  of  such  book  in  evidence  was,  "it  had  long  been  esta- 
blished as  a  rule,  that  all  classes  of  men  who  were  obliged  to  keep  books, 
in  the  way  of  their  trade,  should  be  put  upon  the  same  footing."  This 
principle  thus  settled  was  enforced  in  innumerable  cases,  and  with  little 
restriction,  until  the  case  of  Z/ynr/f  ads  .  Petrie,  1  N.  &  McC  130.  In 
that  case  the  court  wisely  undertook  to  limit  the  operation  of  the  rule. 
It  was  an  action  for  work  and  labor,  as  a  bricklayer;  the  charge  or  entry 
was  for  190  days  work  and  labor  as  such.  The  court  held  that  the 
entry  was  inadmissible.  •  Johnson,  J.,  said,  speaking  of  the  admissibility 
of  Ijooks,  "  those  of  a  mechanic  are,  I  thiidv,  admissible  to  prove  the  per- 
*312l  ''^''^"^"'^■^  of  ^  l)articular  job  of  work  in  the  course  of  *his  trade, 
-•  and  articles  furnisiied."  To  this  I  assent,  but  with  this  qualifica- 
tion, that  "  the  |)erfornuince  of  a  job  of  work,"  as  a  book  entry,  mad  be 
of  somelhi/Kj  which  in  uUimalehj  delivered  to  the  defendant :  such  as 
work  done  in  shops  kept  by  the  i)laintiff.  In  that  way  it  comes  appro- 
priately within  the  reason  of  the  rule  deduced  from  the  recital  in  the 
county  and  precinct  court  Act  of  1721,  for  it  declared  the  law  before  in 
tlic  Province  to  be,  "that  books  of  account  shall  be  allowed  for  evidence, 
the  idaintiif  swearing  to  the  same,  by  reason  that  the  merchants  and  shop- 


*312]  ST.  Philip's  church  ads.  white.  547 

keepers  in  South  Carolina  had  not  an  opportunity  of  getting  appren- 
tices and  servants  to  deliver  out  their  goods  and  keep  their  hooks,  as  the 
merchants  and  shop-keepers  in  Great  Britain  had."  Merchants  and 
shop-keepers,  it  is  to  be  observed,  are  the  only  parties  who  are  permitted, 
under  the  law  thus  recited,  to  verify  their  books  by  their  own  oaths,  and 
that,  too,  because  they  could  not  have  apprentices  and  servants  to  prove 
the  delivery  of  goods  and  keep  their  books.  To  come  in  under  this  rule, 
the  party  must  seem  to  be  in  the  same  necessity,  and  therefore  within  the 
reason  of  the  rule.  I  can  readily  perceive  the  necessity  for  a  mechanic, 
doing  work  in  his  shop  and  delivering  it  out,  to  keep  books  and  to  be 
permitted  to  prove  his  entries.  But  when  it  is  work  done  outside  of  his 
shop,  and  on  the  defendant's  premises,  as  building  or  repairing  a  house, 
or  any  other  fixture,  there  can  be  no  necessity  for  books,  for  the  work  is 
apparent  and  palpable,  and  the  only  questions  are,  by  whom  was  it  done  ? 
and  for  whom  ?  Neither  of  these  cpiestions  are  properly  to  be  answered 
by  an  entry  made  by  the  plaintiff.  It  only  proves  a  delivery  of  some- 
thing made  or  repaired  or  sold  by  the  plaintitT.  Regarding  the  qualifi- 
cation of  the  rule  stated  in  Lynch  ads.  Petrie,  which  I  have  thus  stated 
and  enforced,  to  be  proper,  the  plaintiff's  entry  could  not,  under  it,  be 
received. 

In  the  same  case,  Johnson,  J.,  speaking  of  the  generality  of  the  entry, 
said,  "the  evidence  admitted  in  this  case  is  a  charge  for  work  and  labor 
only,  and  contains  no  specification,  except  that  of  time.  If  entries  of 
this  character  were  admitted,  every  description  of  persons  who  work  for 
him  would  have  nothing  to  do  to  warrant  a  recovery  l^utto  measure  their 
services  by  this  standard."  *In  Tliomas  vs.  Dyott,  1  X.  &  McC.  r^oiq 
18(),  the  same  Judge  stated,  "that  as  far  back  as  it  was  possible  '- 
to  trace  the  subject,  the  books  of  merchants  and  mechanics  of  every  de- 
scription, which  have  been  fairly  and  regularly  kept  as  daily  memoranda 
of  their  transactions^  have  Ijeen  admitted  as  evidence  of  goods  or  other 
articles  delivered.''''  The  fact  that  entries  are  "  daily  memoranda," 
seems  to  be  essential  to  their  admissibility.  Hence  a  general  entry  like 
that  in  Lynch  ads,  Petrie,  or  ;is  in  this  case,  cannot  be  received  ;  for  in 
both  cases  we  have  an  aggregate  charge,  a  general  result,  and  not  that 
of  each  day's  business  or  work.  We  therefore  think  the  entry  was  impro- 
perly received  ;  and  hence,  as  the  evidence  in  the  case  does  not  put  it 
beyond  dispute  that  the  work  was  done,  and  the  flagging,  curb  and  gut- 
ter stone  furnished  by  the  plaintiff  for  the  defendant,  we  think  a  new 
trial  must  be  granted. 

The  motion  for  a  new  trial  is  accordingly  granted. 

IviciiAiiDsoN,  Evans,  Butler,  and  Wardlaw,  JJ.,  concurred. 
See  Supra,  133  ;  2  Sp.,  286  ;  9  Rich.,  29G.     An. 


548  CHARLESTON,  FEBRUARY,  1842.      VOL.  II.  [*313 


George  W.  Stoney  vs.  D.  R.  Beaubien. 

1.  Wliere  a  party  -nrites  his  name  on  the  back  of  a  promissory  note,  payable  to  a 
tliird  person,  not  yet  due,  -withont  express  words  to  show  the  nature  of  his 
contract,  he  will  be  held  as  an  original  promissor. 

2.  It  seems  the  undertaking  will  be  regarded  as  original,  and  not  collateral. 

Before   O'Neall,  J.,   Beaufort   District,    Spring   Term,    1841,    whose 
report  of  the  case  is  as  follows  : 

This  was  an  action  of  assumpsit,  brought  on  the  following  note:  "  $100, 
(seven  hundred  dollars.)  Ou  or  before  the  first  day  of  May  next,  I  pro- 
^„.  -,  raise  to  pay  to  George  *M.  Stoney,  or  order,  the  sum  of  seven 
-J  hundred  dollars,  for  value  received.  John  M.  Zealy.  Beaufort, 
December,  IStli,  1838."  On  the  back,  the  defendant  wrote  his  name, 
"D.  K.  Beaubien."  The  plaintiff's  declaration  counted,  1st,  vs.  defend- 
ant as  maker ;  2d,  as  guaranty  ;  and  3d,  on  the  money  count.  It  appeared 
that  Zealy  was  engaged  in  building  a  house  for  the  plaintiff.  To  obtain 
the  sum  of  seven  hundred  dollars,  to  enable  him  to  purchase  lumber,  he 
asked,  as  he  said,  Beaubien  to  endorse  this  note,  which,  he  had  previously 
dravrn,  which  he  did.  The  object  was,  he  said,  to  make  it  good  to  Dr. 
Stoney,  the  plaintiff.  On  presenting  the  note  thus  secured,  he  obtained 
the  money  from  the  plaintiff.  There  seemed  to  be  no  doubt  from  the 
proof,  that  Mr.  Zealy  was  unable  to  pay  his  debts ;  although  it  was 
equally  clear,  that  he  was  an  honest,  trustworthy  and  enterprising 
mechanic.  To  secure  the  defendant,  he  had  confessed  a  judgment  to  him 
for  this  debt.  The  following  letters  of  the  plaintiff  were  given  in  evi- 
dence by  the  defendant : 

"Hilton  Head,  Uth  December,  1888. 
"Dear  Sir — By  man  Prophet,  I  have,  in  accordance  to  your  request, 
enclosed  in  a  separate  package,  sealed,  S700 — (seven  hundred  dollars,) 
which  I  hope  will  reach  you  in  safety.     I  have  received  your  obligation, 
with  Mr.  Beaubien's  endorsement,  for  the  amount  remitted. 

"Yours,  &c.,  George  M.  Stoney. 

"To  Capt.  John  M.  Zealy,  Beaufort." 

*315]  ^"Beaufort,  M  May,  1%Z^. 

"  Dr.  II.  Beaubien,  Esq., 

"  Dear  Sir — In  conformity  to  the  usage  and  custom  of  business,  I 
merely  notify  you,  that  the  note  given  in  my  favor  against  Capt.  John 
M.  Zealy,  for  seven  hundred  dollars,  and  for  which  your  are  endorser, 
came  due  on  the  1st  inst. 

"  Respectfully,  your  ob't  serv't, 

George  M.  Stoney." 

On  the  closing  of  the  plaintiff's  case,  the  defendant  moved  for  a  nonsuit, 
on  two  grounds  :  1st,  that  the  proof  did  not  sustain  any  one  of  the  counts 
in  the  declaration.  2d,  that  the  note  of  Zealy,  with  Beaubien's  name  on 
the  back  of  it,  could  not  be  a  promissory  note.  The  motion  for  a  nonsuit 
was  overruled  ;  the  case  went  to  the  jury,  who  were  instructed,  the  plain- 
tiff could  not  recover,  on  the  counts  treating  the  defendant's  liability  as 
arising  as  endorser  or  guarantor ;  that  (if  he  was  liable  at  all)  I  thought 


*315  STONEY   VS.   BEAUBIN.  549 

it  was  as  drawer  of  the  note.  Tliis,  I  told  them,  was,  I  thought,  the 
true  view  of  his  lial)ility.  For  lookinp^  to  tlie  instrument,  and  reading  it 
in  connection  with  the  names  upon  it,  it  was  an  unconditional  several 
promise  on  the  part  *of  Zealy  and  Beaubien,  to  pay  according  to  rt-Qif> 
the  tenor  of  the  note.  The  case  of  Nelson  vs.  Dubois,  13  J.  II.  ■- 
175,  seems  to  me  to  be  this  case.  The  note  in  that  case  was  made  by 
Brunbridge,  payable  to  the  plaintiff;  and  on  the  back  of  it  the  defendant 
wrote  his  name.  The  note  was  made  by  Brunbridge,  for  the  price  of  a 
horse,  which  Nelson  would  not  agree  to  sell  him  without  security.  This 
note  was  written  by  Dubois,  who,  after  Brunbridge  signed  it,  wrote  bis 
name  on  the  back  of  it,  and  delivered  it  to  the  plaintiff,  and  said  he  con- 
sidered himself  bound  to  pay  the  note,  and  guaranteed  the  payment  of  it. 
The  analogy  of  that  case  to  this  will  be  perceived  by  remembering  that 
the  note  here  was  made  to  procure  money,  and  that  the  object  of  Beau- 
bien's  signature  was  to  make  it  good  to  the  plaintiff;  and  that  when  the 
note,  thus  signed,  was  delivered  to  the  plaintiff,  he  sent  to  Zealy  the 
money. 

In  the  case  of  N'elson  vs.  Dubois,  13  J.  R.  115,  Spencer,  J.,  said,  "  I 
confess  I  do  not  perceive  that  this  case  is  at  all  within  the  statute  (of 
frauds  and  perjuries  ;)  the  defendant's  promise  is  not  to  pay  on  default  of 
Brunbridge,  but  is  an  original  undertaldng  as  surety ;  and  the  defendant 

State  op  South  Carolixa,      )      j    ti     n        ^     -di„  . 
^  „  ^       S-     111  the  Lommon  Meas. 

Beaufokt  District.        j 

D  R.  Beaubien  was  attached  to  answer  to  George  M.  Stoney,  in  a  plea  of  trespass 
on  the  case,  and  so  forth,  to  his  damage,  fourteen  liundred  dollars. 

Whereupon  the  plaintiff  complains :  For  tliat  the  defendant  did,  on  the  thirteenth 
day  of  December,  Anno  Domini,  1838,  together  with  one  John  ]M.  Zealy,  make 
their  certain  promissory  note,  their  own  proper  hands  being  thereunto  written,  by 
which  said  note,  the  defendant  did  jointly  and  severally  with  the  said  John  M. 
Zealy,  promise  to  pay  or  cause  to  be  paid  unto  the  plaintiff  or  his  order,  the  full 
and  just  sum  of  seven  hundred  dollars,  on  or  before  the  first  day  of  May,  then 
next  ensuing,  fur  value  received.  By  reason  whereof,  and  by  force  of  the  statute 
in  such  case  made  and  provided,  and  made  of  force  in  this  State,  the  defendant 
became  liable  to  pay  to  the  plaintiff  the  said  sum  of  money,  in  said  note  contained, 
according  to  the  tenor  and  effect  of  said  note.  And  being  so  liable,  the  said 
defendant  afterwards,  to  wit :  on  the  same  day  and  year  aforesaid,  at  Beaufort, 
aforesaid,  and  within  the  jurisdiction  of  this  Court,  in  consideration  thereof, 
upon  l;im  did  assume,  and  to  the  plaintiff  the  said  sum  of  money  then  and 
there  faithfully  promised,  that  he,  the  said  defendant,  would  well  and  truly 
pay,  according  to  the  tenor  and  effect  of  the  said  note.  And  for  that  the 
.defendant,  on  the  day  and  year  aforesaid,  in  consid(>ration  that  the  plaintiff'  would 
lend  and  advance  to  the  said  John  M.  Zealy,  a  certain  large  sum  of  money,  to  wit: 
seven  hundred  dollars,  which  he  the  jdaintiff  had  occasion  for,  on  a  credit  from 
that  time  to  the  first  day  of  May,  then  next  ensuing,  and  take  the  note  of  him 
the  said  John  M.  Zealy,  payable  at  that  time,  he,  the  defendant,  undertook  and 
promised  to  guaranty  to  the  plaintifl"  the  payment  of  the  said  note  ;  and  that  the 
plaintiff,  confiding  in  tlie  said  promise  and  undertaking  of  the  defendant,  did,  on 
the  day  and  year  aforesaid,  lend  and  advance  to  the  said  John  M.  Zealy,  the  sum 
of  seven  hundred  dollars,  on  a  credit  from  that  tinu,'  to  the  first  day  of  May,  then 
next  ensuing,  and  took  liis  note,  therefor,  payable  to  the  plaintiff  or  his  order,  on 
the  day  last  mentioned ;  to  which  said  note  the  defendant  became  a  party,  his  own 
proper  hand  being  thereunto  written  as  guaranty  for  the  payment  thereof,  and 
tlien  and  there  faithfully  x'romised  and  undertook  to  pay  the  same,  if  payment 
thereof  was  not  made  by  him  the  said  John  M.  Zealy,  on  the  day  last  mentioned 
as  aforesaid ;  and  that  "the  said  John  M.  Zealy  did  not,  on  the  first  day  of  May 


550  CHARLESTON,  FEBRUARY,  1842.      YOL.  11.  [*317 

^^  .-,  *is  as  much  liolden,  as  if  he  had  signed  the  bod}'  of  the  note." 
^^'J  This  view  of  the  case  was  concurred  in  by  all  the  Court,  (except 
Tan  Xess,)  and  I  thougiit  it  presented  the  true  rule  by  which  this  case 
was  to  be  decided.  It  was  supported  by  Frampton  vs.  Dudley,  1st  N. 
&  M'C.  128;  Ecde>i  vs.  Ballard,  2d  McC.  388. 

The  jury  found  for  the  plaintiff,  and  the  defendant  appealed  on  the  sub- 
joined grounds  for  a  nonsuit : 

1.  Because  the  proof  offered  by  the  plaintiff,  did  not  sustain  any  one  of  the 
counts  in  the  declaration. 

2.  Because  a  note  of  hand  simply  endorsed  by  one  who  is  not  a  party  to  it, 
does  not  of  itself  amount  to  a  note  within  the  statute  3  and  4  Ann,  ui'On 
which  he  can  be  sued  as  drawer;  and  his  Honor  erred  in  ruling,  that  the 
defendant's  name  on  the  back  of  the  note  sued  on,  was  equivalent  to  his 
signature  at  the  bottom  of  the  said  note. 

And  failing  therein,  for  a  new  trial,  on  the  grounds  : 

1.  Because  the  jury  ought  to  have  been  charged,  that  a  note  like  the  one 
sued  on,  and  endorsed  by  a  person  not  a  party,  raises  the  presumption  that  the 
endorser  intended  to  bind  himself  as  second  endorser  only,  and  not  as  drawer ; 
and  that  that  ])resumption  should  prevail,  until  the  contrary  was  shown. 

2.  Because  the  testimony  showed  clearly  that  the  defendant,  in  putting  his 
name  on  the  back  of  the  note,  intended  merely  to  bind  himself  as  an  endorser; 
and  tluit  the  plaintiff  understood  his  obligation  or  undertaking  to  be  merely  as 
an  endorser  according  to  the  custom  of  merchants. 

3.  Because  his  Honor  erred  in  charging,  that  inasmuch  as  the  said  D.  R. 

last  mentioned,  pay  the  said  sum  of  money  in  said  note  contained,  but  the  same, 
and  every  part  thereof,  did  then,  and  from  thtoceforward  hath  continually  refused 
and  neglected  to  pay,  and  still  doth  refuse,  whereof  he  the  defendant  liad  notice  ; 
hy  reason  whereof,  the  defendant  hath  become  liable  to  pay  to  the  plaintiff  the 
said  sum  of  money  in  said  note  contained,  according  to  the  tenor  and  effect  of 
said  note. 

And  fm-  the  defendant,  on  the  day  and  year  aforesaid,  at  Beaufort  aforesaid, 
was  indebted  to  the  plaintiff  in  another  sum  of  seven  hundred  dollars,  for  money 
by  the  plaintiff,  before  that  time,  laid  out,  expended  and  paid  for  the  said  defendant 
at  his  sjjecial  instance  and  request ;  and  for  other  money  by  the  plaintiff,  before 
that  time,  lent  and  advanced  to  the  use  of  the  defendant,  and  at  his  special 
instance  and  request ; — and  for  other  money  by  the  defendant,  before  that  time, 
lia<l  and  received  to  the  use  of  the  plaintiff;  and  being  so  indebted,  he  the 
dcfiMidant,  in  consideration  thereof,"assumed  upon  him,  and  the  said  several  sums 
of  money  to  him  the  plaintiff',  then  and  there  as  aforesaid  promised  and  undertook 
to  pay.  Yet  the  defendant,  his  said  several  pronuses  and  undertakings  in  manner 
and  form  aforesaid  made,  in  no  wise  regarding,  but  contriving  and  fraudulently 
intending  the  plaintiff  in  this  behalf  to  deceive  and  defraud,  the  said  several  sums 
of  money  al)ov<!  nnmtioned,  .or  any  part  thereof,  to  the  plaintiff  hath  not  paid, 
althou^'-h  oftcntiuK^s  required  so  to  do  ;  but  the  same  to  the  plaintiff  to  pay,  or 
any  jiart  tlicreof  to  pa^^,  hath  hitherto  wholly  neglected  and  refused,  to  the 
damage  of  the  plaintiff,  fourteen  hundred  dollars,  and  therefore  he  brings  his  suit, 
and  HO  forth. 

E.  &  A.  RHETT,  Plaintiff's  Attorneys. 

[copy  of  note.] 
I'^yno— (Sr'ven  Hundred  Dollars,) 

(»n  or  lii'forc  I  lie  first  day  of  May  next,  I  promise  to  pay  to  George  M.  Stoney, 
or  order,  the  sum  of  ncvan  Imudrcd  ilulldrs,  for  value  received. 

JOHN  M.  ZEALY." 
Beaufort,  December  13th,  1838. 

Endorsed,  D.  R.  Beaubiex. 


'317] 


STONEY   VS.    BEAUBIEN.  551 


Beaubien  was  not  chargeable  as  an  endorser  or  guarantor,  he  was  answerable 
onl}' as  a  drawer;  whereas,  it  is  respectl'iilly  siilnnittcci,  that  the  said  I).  R. 
Beaubien  might  bo  charged  as  a  party  to  the  original  contract,  (though  not  as 
a  drawer  of  the  note,)  if  sufficient  evidence  of  his  intention,  and  of  a  considera- 
tion, had  been  produced 

*4.  Because  the  construction  put   by  his   Honor  ujion  the  effect  of  r*o-|Q 
the  defendant's  signature  on  the  back  of  tlie  said  note,  is  to  alter  tiie  ^ 
nature  of  the  obligation  which  he  intended  to  assume,  and  believed  he  had 
assumed,  and  which  the   plaintiff  understood  he  had  assumed,  and  to   make 
him  a  part}'  to  a  contract  of  a  character  essentially  difi'erent. 

5.  Because  the  verdict  of  the  jury  was  contrary  to  the  weight  of  the  evidence. 

6.  Because  the  sense  in  which  the  said  Dr.  George  M.  Stoney  understood 
and  used  the  words  "endorsement"  and  "endorser,"  was  a  question  entirely  for 
the  jury,  and  ought  to  have  beea  submitted  to  them  as  such. 

De  TrerUle,  for  the  motion,  on  the  ground  for  a  nonauit.  said  there  was  a  difference 
between  the  Allcjatn  and  Probata.  He  cited  12  J.  R.  1.59  ;  17  ih.  32(j ;  Chitty  on 
Bills,  195 ;  Bail,  on  do.  4.56.  Moise's  case  is  more  analogous  to  this  case,  11 
Mass.  Rep.  43lJ ;  Chitty  on  Bills  sustains  this  view.  In  Mass.  the  statutes  three 
and  four  of  Ann  are  not  of  force.  Chitty  on  Bills,  64  ;  3  Kent  Com.  9U ;  7  Com. 
Rep.  48. 

On  the  sixth  ground,  he  contended  there  was  error  in  the  instructions  given  to 
the  jury. 

E.  and  A.  Blutt,  contra,  said  the  word  "endorser,"  in  common  parlance,  is  a 
surety.  What  did  Beaubien  mean  by  writing  his  name  ?  The  second  endorsement 
imposes  no  obligation. 

1st.  He  contended  that  the  defendant  was  liable  as  guarantor ;  cited  2  Selwyn  N. 
P.  63  ;  2  Bail.  5. 

2d.  Can  the  defendant  be  charged  as  drawer  ?  cited  2  Bail.  611 ;  1  Ld.  Ray. 
744  ;  5  Byles  on  Bills,  in  14  vol.  L.  Lib.  16  ;  E.  14 ;  1  vol.  Law  Lib.  25.  He  said 
12  and  17  J.  R.  contained  no  count  against  a  drawer.  Hunt  «Sc  Adams  treat  the 
liability  as  drawer. 

The  instrument  declared  on  in  the  case  of  Moise  vs.  Bird,  was  not  negotiable. 
4  Pick.  311 ;  Bail,  on  Bills,  44.  Flint  vs.  Da,;,  9  Vermont  Rep.  345.  When  the 
party  writes  his  name  on  the  back  of  the  instrument,  without  expressing  the 
nature  of  the  contract,  he  is  considered  as  a  joint  promissor. 

*Hill  vs.  Lctcis,   Skin.  410.     A  bill  payable  to  .J.   S.   or  bearer,  is  not  r*oi  g 
endorsable ;  yet  if  it  be  endorsed,  the  endorser  shall  be  charged,  for  every  '• 
endorsement  is  as  a  new  bill.     1  Salk.  125  ;  1  Ld.  Ray.  181,  743. 

Curia,  per  O'Neall,  J.  This  Court  concurs  in  the  instructions  given 
below.  It  is,  however,  now  necessary  to  go  more  at  large  iuto  the 
discussion  of  the  point  involved,  than  was  done  in  the  report. 

The  defendant's  liability  cannot  be  considered  as  arising  under  an 
endorsement.  For,  although  he  wrote  his  name  on  the  back  of  the  note, 
yet  he  had  no  right  to  direct  the  payment  of  the  money  to  the  plaintiff, 
to  whom  the  maker  had  already  promised  to  pay.  Neither  can  it  be 
regarded  as  a  guarantee.  Fur  there  was  nothing  in  the  fact  of  writing 
his  name  on  the  note,  with  its  attending  circumstances,  to  make  it  neces- 
sary to  consider  tlie  case  in  that  point  of  view. 

The  true  view  of  this  contract,  is  to  consider  it  as  the  general  under- 
taking of  the  defendant,  until  something  is  shown  by  him  which  will 
prevent  it  from  being  so  considered.  Tliere  is  nothing  in  the  words  of 
the  contract  inconsistent  with  this  view.  For  the  words  "  I  promise  to 
pay"  apply  to  every  name  on  the  paper,  and  I  take  it,  that  it  is  perfectly 
immaterial  where  one  intending  to  be  bound  by  a  contract,  places  his 
name  upon  the  paper  on  which  it  is  written.     His  signature  is  merely  the 


552  CHARLESTON,  FEBRUARY,  1842.      VOL.  IL  [*319 

evidence  of  his  assent  to  be  bound  by  the  contract,  and  when  it  is  found 
written  on  the  paper  containing  the  terms,  it  is  sutEcient. 

In  Flint  vs.  Day,  9  Vermont,  195,  the  doctrine  on  this  subject  was 
Tery  well  declared  by  the  Judges,  when  they  held  that  he  who  writes  his 
name  on  the  back  of  a  note  payable  to  a  third  person,  not  yet  due, 
without  express  words  to  show  tlie  nature  of  his  contract,  is  an  original 
promissor. 

In  Moise  vs.  Bird,  11  Mass.  Rep.,  430,  the  note  was  made  to  Benja- 
min Bird  to  the  plaintitt"  or  his  order.  Before  it  was  due,  and  before  it 
was  handed  to  the  plaintiff,  the  defendant  wrote  his  name  on  the  back  of 
it.  In  that  case,  the  Court  held  that  the  defendant  could  not  be  made 
*Q.->oi  ^^'i'^'^'  ^^  endorser  of  the  note,  as  it  was  not  payable  to  him.,  *J. 
-J  Parker  said,  "  what  then  was  the  effect  of  his  signature  ?  It  was 
to  make  him  absolutely  liable  to  pay  the  contents  of  the  note."  And  it 
■was  ruled,  by  the  whole  Court,  that  he  was  liable  as  an  original  pro- 
missor. 

In  vs.  ,  4  Pick'g,  311,  the  same  point  was  decided. 

Baker  vs.  Bn'ggs,  9  Pick'g,  121,  was  on  a  similar  note — on  the  Circuit 
and  on  the  appeal  to  the  Supreme  Court,  it  was  held,  that  the  defendant 
was  liable  as  an  original  promissor,  and  was  rightly  declared  against  as 
such. 

In  INIassachusetts  it  is  considered  now  as  settled  law,  that  when  a 
defendant  writes  his  name  on  the  back  of  a  note  not  yet  due,  payable  to 
a  third  person,  he  will  be  treated  as  an  original  promissor,  unless  he  can 
show  that  his  contract  was  not  intended  to  have  that  effect.  I  think  the 
same  rule  must  be  deduced  from  some  of  the  New  York  eases,  when 
they  come  to  be  fully  analyzed  and  considered. 

in  Herrick  vs.  Carman,  12  J.  R.  159,  the  action  was  against  the 
defendant  as  endorser.  The  circumstances  material  to  be  noted  were, 
Ryan  applied  to  L.  Carman  &  Co.,  for  credit,  which  they  refused.  He 
made  his  note  i)ayable  to  L.  Carman  &  Co.,  or  order,  which  the  defendant 
endorsed. — Ryan  presented  the  note,  to  L.  Carman  &  Co.,  and  obtained 
the  goods  he  wanted.  They  sold  the  note  to  the  ])laintifF,  at  a  discount, 
di.-^closing  all  the  circumstances,  but  endorsing  the  note.  The  defendant 
was  held  not  li\d)lc.  Spencer,  J  ,  however,  remarked,  "had  it  appeared 
that  the  plaintilf  endorsed  the  note  for  the  purpose  of  giving  Ryan  credit 
with  L.  Carman  &  Co.,  then  I  should  have  considered  him  liable  to  them 
or  any  sulisequent  endorsee,  and  the  defendant's  endorsement  might  have 
been  converted  into  a  guaranty  to  pay  the  note  if  Ryan  did  not,  according 
to  the  decision  of  the  Supreme  Court  in  Massachusetts,  3  Mass  Rep., 
274."  JoHcchpi  vs.  Adavif^,  is  the  case  referred  to  by  Mr,  J.  Spencer. 
In  that  case,  it  was  held  that  an  endorsee  for  valuable  consideration  of  a 
note  not  negotiable,  may  write  over  the  name  of  the  endorser  a  promise 
to  i)ay  the  contents  of  the  note  to  the  endorsee,  who  may  maintain  an 
action  on  such  promise.  Taking  the  two  cases  together,  it  may  be  fairly 
inferred,  Ihat  the  doctrine  intended  to  !)e  maintained  by  that  able  Judge, 
*3'^11  ^^^'  '^'  ^l'^"'"^''"'  ""'^  ^'"^t  when  Ihe  deh-nd ant's  *act,  by  his  knovv- 
-•  ledge  and  with  his  assent,  gave  credit  to  the  maker,  then  that  he 
might  be  treated  as  originally  liable  for  the  payment  of  the  contents  of 
the  note. 

Jn  Til  man  vs.  Whfidvr,  (17  J.   R.   32C,j  the  count  was  on  the  de- 


*321]  STONEY   VS.    BEAUBIENl  553 

fendant's  endorsement  of  a  similar  note,  as  a  guarantee — it  was  held  that 
the  plaintiff  could  not  recover. 

In  Nelson  vs  Dtibois,  (13  J.  R.  175,)  the  recovery  was  sustained  on 
the  third  count  in  the  declaration,  which  considered  the  plaintiff's  under- 
taking as  a  gMiarantee.  It  is  true  that  the  first  count  was  against  him  as 
milker.  It  does  not  appear  to  be  noticed  bj'  Spencer,  J.,  who  ruled  that 
the  evidence  offered  to  charge  the  defendant,  and  excluded  on  the  circuit, 
was  admissible  under  the  third  count.  This  reasoning,  however,  through- 
out, proves  that  the  defendant's  undertaking  was  original,  and  not  col- 
lateral, and  that  his  liability  arose  from  the  act  of  writing  his  name  on 
the  note,  intending  to  make  it  good  to  the  plaintiff.  The  words,  "  the 
defendant  is  as  much  holden  as  if  he  had  signed  the  body  of  the  note," 
are  far  from  being  equivocal;  they  plainly  import  that  the  defendant 
might  be  liable  as  maker. 

I  am  aware  that  there  are  other  cases  in  New  York,  which  may  seem 
to  have  a  contrary  tendency.  They,  however,  do  not,  so  far  as  I  have 
been  able  to  examine  them,  touch  on  the  doctrine  which  I  deduce  from 
the  cases  cited. 

In  Frampton  vs.  Dudley,  (1  N.  &  McC.  129,)  the  Court  of  this  State 
first  directed  its  attention  to  this  subject.  The  note  there  was  payable 
to  the  plaintiff  or  I)earer.  Tiie  defendant  wrote  his  name  on  the  back  of 
the  note  ;  the  declaration  counted  against  hira — first,  as  endorser;  second, 
specially,  that  the  defendant  agreed  to  become  security  for  the  drawer, 
and  therefore  endorsed  it;  third,  for  money  had  and  received  Under 
these  counts  the  Court  ruled  the  j^laintiff  could  not  recover — holding  that 
under  the  second  count  no  sufficient  consideration  was  stated.  But 
the  Court  intimated  a  strong  opinion,  that  if  the  defendant  intended  to 
become  a  party  ''to  the  original  contract,^^  he  might  in  some  other  form 
be  made  liable.  The  reporters  suggested  the  inquiry,  whether  he  might 
not  1)6  made  liable  as  drawei*.  In  Eecles  vs.  Ballard,  (2d  McC.  388,) 
the  Court  responded  to  that  query,  by  ruling  that  the  endorser  of  a  note 
^payable  to  bearer  shall  be  considered  as  the  drawer  of  a  new  bill,  r^oc).^ 
If  I  was  comi^elled  to  rest  this  case  here,  I  should  think  I  had  ^ 
done  enough  to  vindicate  the  decision  below.  For  certainly  the  weight 
of  authority  is  altogether  in  favor  of  it.  Indeed  the  case  of  Eecles  vs. 
Ballard  touches  the  very  point.  For  when  it  ruled  that  the  endorser 
of  a  note,  payable  to  bearer,  niust  be  regarded  as  the  drawer  of  a  new 
bill,  it  was  upon  the  ground  that  his  contract  was  otherwise  h'gally  in- 
0}>erative.  In  the  case  before  us  the  same  result  v.'ould  follow,  if  we 
could  not  come  to  a  similar  conclusion.  For  to  endorse  a  note  payable 
to  another  can  have  no  effect,  if  it  does  not  make  the  defendant  liable  as 
the  maker  of  the  note. 

The  English  cases  will,  I  think,  lead  us  to  the  same  conclusion. 

In  Hill  vs.  Lewis,  (Skinner,  410,)  C.  J.  Holt,  before  a  jury  of  mer- 
chants, and  with  their  assent,  ruled  that  a  bill  payable  to  bearer  was  not 
endorsealde ;  yet,  if  it  be  endorsed,  the  endorser  shall  be  charged — for 
every  such  endorsement  is  as  a  new  bill.  Why,  it  may  be  asked,  was  this 
ruling  made  ?  It  was  because  the  endorsement  of  such  a  bill  could  not 
have  effect  in  its  legal  and  technical  character,  and  was  therefore  not  sub- 
ject to  the  rules  governing  that  class  of  contracts,  and  hence  the  Court 


554  CHARLESTON,  FEBRUARY,  1842.     VOL.  IL  [*322 

was  obliged  to  regard  it   as  a  new  bill,  direct ing  the  payment  to  the 
eiidorserof  the  contents  of  ihe  note  according  to  its  tenor  and  effect. 

In  Hodges  vs.  Steicart,  (1st  Salk.  125,)  the  second  point  ruled  was, 
"thongh  an  assignment  of  a  bill  payable  to  J.  S.  or  bearer,  be  no  good 
assignment  to  charge  the  drawer  with,  in  an  action  on  the  bill,  yet  it  is  a 
good  bill  between  the  endorser  and  the  endorsee,  and  the  endorser  is 
liable /ci  an  action  for  the  money;  for  the  endorsement  is  as  a  new  bill." 
To  the  same  effect  was  the  ruling  of  the  Judges  in  Nicholson  vs.  Sege- 
wick,  (1  Ld  Ray'd.  171;)  Tasset  &  Lee  vs.  Servis,  (1  Ld.  Ray'd. 
743-4  )  These  cases  abundantly  prove  that  one  who  writes  his  name  oa 
the  back  of  a  note,  payable  to  bearer,  becomes  originally  liable  for  the 
contents.  The  reason  why  that  is  the  lav?^ — because  otherwise  no  legal 
effect  would  result  from  the  endorsement — applies  forcibly  to  the  case 
DOW  in  hand.  A  promises  to  pay  B,  or  order,  money,  and  C,  in  order  to 
*Qoqi  ?'^'^  ^^'™  credit  and  to  ''make  the  note  good,  writes  his  name  oa 

"  -'  the  back  of  it — unless  this  be  regarded  as  a  several  undertaking  to 
pay  the  note,  it  can  have  no  legal  effect  from  the  paper  itself  The  object 
and  duty  of  Courts  is  to  enforce  contracts,  not  to  set  them  aside;  and 
hence,  unless  there  is  something  which  renders  it  legally  inoperative,  it 
should  have  effect  according  to  a  fair  construction.  Looking  to  the  note 
before  us,  and  construing  the  words  in  connection  with  the  names  of 
Zealy  on  the  face  and  Bcaubien  on  the  back,  it  is  no  strained  or  unrea- 
sonable construction  to  say  that  on  the  13th  of  December,  1838,  each  of 
them  promised  to  pay  to  George  M.  Stoney,  or  order,  on  or  before  the 
1st  of  May  next  ensuing,  the  sum  of  seven  hundred  dollars,  for  value 
received      The  motion  is  dismissed. 

Richardson,  Evans,  Butler,  and  Wardlaw,  JJ.,  concurred. 

See  Cnrpenter  vs.  Oaks,  10  Rich.  19  ;  Ambler  vs.  IliUier,  9  Rich.  244  ;  Baker  vs. 
iScott,  .')  Rich.  310  ;  Pride  vs.  Berhley,  5  Rich.  539  ;  CocJcrcll  vs.  Milliny,  1  Strob. 
444  ;  Graij  vs.  Bell,  2  Rich.  71.     An. 


The   Treasurers,   for  James   Malony,  vs.   William  B.  Buckner, 

Sheriff. 

1.  On  a  suprgpstion  filcrl  against  a  sheriff,  (after  judgment  has  been  obtained 
against  him  on  his  official  bond,)  suggesting  other  breaches  of  liis  bond,  he  may 
plead  double  if  he  chooses,  but  he  cannot  traverse  and  demur  both,  to  the  same 
portion  f>f  the  suggestion. 

2.  Wliatcvcr  a  sherilF  does,  or  omits  to  do,  in  his  official  character  as  a  public 
officer  (under  tiie  Act  of  1829),  properly  recognized,  whereby  damage  results  to 
another,  seems  to  be  a  violation  of  tlie  duties  of  his  office,  and  the  damage  proved 
rtiay  be  recovered  under  the  bond.  Fees  improperly  charged  constitute  such 
damage;  but  a  penalty  or  forfeiture  given  to  the  party  injured,  for  his  more 
ample  reparation,  and  for  the  punishment  of  the  sheriff,  seems  not  to  be  damage, 
Lilt  fRllier  a  chanre  of  gain,  which,  by  increase,  the  law  bestows  upon  the  suf- 
ferer; such  penalty  or  forfeitun;  maybe  recovered  against  the  sherilf  by  suit, 
"in  which  no  imparlance  shall  be  allowed,"  but  does  not  constitute  such  a 
demand  as  may  be  rec(iv<>re.l  under  the  bond,  against  the  sheriff  and  his  sureties, 
for  liis  breai'h  of  oiricial  duty. 

Before  Waui.law,  J.,  Bcaufurt,  Extra  Term,  January,  1841. 

In  this  rase  the  plaintiff  suggested,  as  a  breach  of  the  official  bond  of 


*323]  TREASURERS   VS.    BUCKNER.  555 

William  B.  Bnckner,  late  sherifif  of  Beaufort  *district,  his  exaction  r^n:)i 
on  certain  executions  in  his  office  against  the  plaintiff,  of  illegal   l 

costs,  to  the  amount  of  $  • ,  and  claimed  to  recover  the  penalty  of 

ten  times  the  excess  as  allowed  by  the  Act.  The  defendant  pleaded  the 
general  issue,  and  also  demurred  specially,  showing  for  cause,  that  this 
was  not  a  matter  for  which  the  sheriff's  sureties  were  liat)le,  and  should 
not,  therefore,  have  been  suggested  as  a  breach  of  the  sheriff's  olficial 
bond.     The  demurrer  was  sustained. 

From  which  the  plaintiffs  appealed,  on  the  grounds  : 

1.  Tliat  the  cause  of  action  was  rightly  suggested,  as  a  breach  of  the  sheriS's 
official  bond :  and, 

2.  That  the  judgment  was,  otherwise,  contrary  to  law. 

E.  R/ictt,  for  tlie  motion,  said  the  defendant  pleaded  the  general  issue  and 
demurred.  Cited  1  Saund.,  note,  58.  The  defendant  cannot  plead  and  demur 
both.  Referred  to  Treasurers  vs.  Bates,  2  Bail.  379  ;  5  Bac.  Abr.  447,  448,  457. 
Second  ground.  Is  the  exaction  by  the  sheriff,  of  illegal  costs,  a  breach  of  his 
official  bond  ?     2  Hill,  G47  ;  2  Brev.  Rep.  229. 

McCarthi/,  contra,  said  the  only  ground  made  was,  that  the  cause  of  action  was 
well  stated.  He  contended  the  penalty  could  not  be  recovered  under  the  bond. 
Is  the  sheriff  liable  for  extortion  in  taking  more  costs  than  he  ought  ? 

• 

Curia,  per  Wardlaw,  J.  A  formal  decision  only  of  this  case,  was 
made  upon  the  circuit,  and  a  report  by  consent  of  counsel  prepared  for 
taking  the  opinion  of  this  court. 

It  now  appears  that  a  judgment  on  his  bond  has  been  obtained  against 
Buckner  only,  and  not  against  his  sureties  ;  that  what  is  called  a  general 
issue  was  a  general  traverse  of  the  suggestion  tendering  an  issue,  that 
the  special  demurrer  was  a  sort  of  special  plea,  in  which,  whilst  the 
lialiility  for  the  excess  of  fees  exacted  over  the  legal  fees  is  admitted,  the 
liability  for  ten  times  the  excess  is  denied  ;  that  there  was  an  order  of 
court  permitting  the  defendant  to  plead  double,  and  that  the  plaintiff 
joined  in  the  issue  tendered  by  the  special  demurrer  or  plea. 

*The  plaintiff  now  objects  that  defendant  could  not  both  plead  rj^r,c)r 
and  demur  to  the  same  parts  of  the  suggestion,  and  insists  that  ^ 
the  defendant  shall  not  have  advantage  of  his  demurrer. 

The  case  of  TJie  Treasurers  vs.  Bates,  2  Bail.  379,  which  first  intro- 
duced or  recognized,  from  necessity,  the  practice  of  suggesting  further 
breaches  after  one  judgment  upon  a  sheriff's  bond,  in  directing  the  course 
of  proceedings,  contemplates  that  the  defendant  shall  ])lead  to  the  sugges- 
tion, and  refers  to  the  case  of  Gainsford  vs.  Griffith,  1  Williams's 
Saunders,  58.  By  the  English  practice  under  the  statute  8  and  9  W.  3, 
c.  ll,(fl)  a  suggestion  is  employed  to  set  out  breaches  existing  at  the 
time  of  the  judgment,  and  the  defendant  is  not  required  to  plead  to  such 
suggestion,  as  the  plaintiff  must,  at  the  execution  of  the  writ  of  inquiry, 
prove  the  breaches  and  recover  damages  accordingly;  ^or,  further,  or 
subsequent  breaches,  a  scire  facias  is  employed,  to  which  defendant 
pleads  as  to  scire  facias  in  other  cases  ;  but  the  pleading,  whatever  it 
may  be,  goes  to  the  right  of  recovery,  and  after  the  establishment  of  that 
right,  in  taking  the  inquisition  or  executing  the  inquiry,  the  amount  of 
damages  is  accommodated  to  the  proof  that  the  plaintiff  may  oil'cr.     lu 

(«)  Not  made  of  force  here.     An. 


556  CHARLESTON,  FEBRUARY,  1842.      YOL.  II.  [*325 

like  manner,  the  practice  in  this  State  directed  as  to  a  sheriff's  bond,  pre- 
supposes a  judg-nient  already  obtained,  which  is  to  stand  as  a  security  for 
the  damages  that  may  be  proved,  and  whilst  it  prescribes  a  suggestion 
rather  than  a  scire  facias  as  a  simpler  proceeding,  it  allows  the  defend- 
ant to  plead,  because  the  breaches  suggested  will  be  for  the  benefit  of  a 
new  party,  and  in  the  nature  o^  further  breaches,  and  because  in  the 
matter  of  the  breaches,  or  in  occurrences  subsequent  to  the  judgment, 
there  may  be  good  ground  for  the  defendant  to  deny  his  liability.  But 
suppose  the  defendant  sliould  make  default  in  pleading  to  the  suggestion, 
shall  the  plaintiff  have  judgment?  That  he  has  already,  for  the  penalty. 
Shall  the  amount  of  damages,  laid  in  the  suggestion,  be  taken  as  admitted  ? 
Then  there  would  be  no  writ  of  inquiry,  but  an  ascertainment  by  confes- 
sion. Tlie  true  view  seems  to  be,  that  the  defendant  cannot,  by  any  de- 
fault or  error  of  pleading,  be  put  in  a  worse  condition  than  that  of  au 
ordinary  defendant  in  an  action  of  debt  or  bond,  conditioned  for  the  per- 
*Q0P1  formance  of  ^'covenants,  after  plaintiff's  recovery  of  judgment  for 

"  -'  the  penalty;  the  facts  and  circumstances  must  be  proved  before  a 
jury,  who  shall  assess  the  damages  accordingly.  Objections  to  those  por- 
tions of  the  suggestion  which  state  the  former  recovery,  and  matters  of 
defence  subsequent  thereto,  are  waived  by  neglect  to  plead,  or  improper 
pleading;  an  assignment  of  breach,  which  the  Court  would  have  held 
insufficient,  may  go  to  the  jury,  if  there  be  no  demurrer;  but  by  no  im- 
plied admission,  arising  from  the  pleading,  can  the  defendant  be  held 
beyond  his  liability  to  such  damages  as  the  plaintiff  may  prove  to  have 
arisen  from  the  breach  assigned.  The  pleading,  so  far  as  concerns  the 
defendant's  liability  for  any  breach,  and  as  concerns  matter  of  form,  apart 
fi'om  the  assignment  of  breach,  should  be  like  that  to  a  scire  facias  upon 
judgment — and  so  far  as  concerns  his  liability  for  the  breach  suggested, 
and  matters  of  form  in  tlie  assignment  of  it,  should  be  like  that  to  a 
replication  assigning  breaches  after  a  plea  of  performance. (a)  As  there 
are  in  this  case  obvious  errors  of  pleading,  and  some  misunderstanding 
exists  between  the  counsel,  tlie  defendant  is  permitted  to  strike  out  all 
after  the  suggestion,  and  plead  de  novo,  })leadiiig  double  if  he  chooses, 
but  not  traversing  and  demurring  to  the  same  portion  of  the  suggestion. 

The  main  question  presented  by  the  appeal  is  as  to  the  extent  of  the 
defendant's  liability,  in  au  action  on  his  bond,  for  fees  improperly  ex- 
acted. (^)  The  condition  of  the  sheriff's  bond  is,  that  "he  will  well  and 
truly  perform  the  duties  of  said  office,  as  now  or  hereafter  required  by 
by  law.  during  the  period  he  may  continue  in  said  ofiQce."  Act  of  Assem- 
bly, LS2!).  Whatever,  in  tlie  execution  of  his  office,  or  in  the  character 
of  a  public  officer  ])roperly  recognized,  the  sheriff  may  do  or  omit, 
whereljy  damage  results  to  another,  seems  to  be  a  violation  of  the  duties 
of  his  odice  ;  and  the  damage  jiroved  may  be  recovered  under  the  bond. 
Fees  improperly  charged  constitute  such  damage;  but  a  penally  or  for- 
feiture given  to  the  party  injured,  for  his  more  ami)le  reparation,  and  for 
the  punisiiment  of  the  sheriff,  seems  not  to  be  damage,  but  rather  a 
chance  of  gain,  which,  Ijy  increase,  the  law  bestows  upon  the  sulVcrer. 
Such  penally  or  forfeiture  may  be  recovered  against  the  sheriff  by  suit, 

in)  Rftfi  Norton  vs.  Mullninn,  4  Slrol..  ?,->Q  ;  Bank  vs.  Bowie,  3  Strob.  442.     An. 
{!,)  SUUv  v.i.   Yniujue,  tj  lUcli.  'ill ;  1  Rich.  307.     An. 


*326]  TREASURERS  VS.    BUCKNER.  557 

"in  which  no  imparlance  shall  be  allowed,"  but  does  not  *seera  r:jcoe)'T 
to  constitute  a  demand  which,  under  the  bond,  may  be  recovered  ^ 
against  the  sheriff  and  his  sureties,  for  his  breach  of  official  duty  In  the 
case  of  Lesley  <&  Calhoun  vs.  Taggart,  decided  at  Columbia,  December, 
1841,  it  was  held,  that  under  sng-gestiou  upon  a  judgment  on  the  bond  of 
a  sheriff,  there  could  not  be  recovered  the  costs  of  suits,  in  case  and 
assuuii)sit,  by  which  tiie  delinquency  of  the  sheriff,  and  amount  of  the  dam- 
ages thereby  occasioned,  had  been  previously  ascertained.  It  was  there  no 
less  the  personal  duty  of  the  sheriff  to  pay  such  costs,  than  here  to  pay 
the  ten  times  the  excess  claimed  ;  and  his  liability  to  pay  costs  occasioned 
to  the  plaintiff's  damage  more  clearly  apparent  than  any  damage  which 
is  here  seen  to  result  from  the  neglect  to  pay  the  ten  times  the  excess,  (a) 
With  these  directions  a  new  trial  is  ordered. 

Richardson,  O'Neall,  Evans,  and  Butler,  JJ.,  concurred. 

See  Sup.  146. 


The  Treasurers  vs.  W.  B.  Buckner. 

Where  a  glierifF  has  no  process  giving  him  authority  to  receive  money,  a  person 
who  pays  to  his  deputy  cannot  look  to  him.  And  where  one,  deceived  by  no 
show  of  authority,  pays  money  to  J.  S.  himself,  then  being  sheritl',  that  which 
the  sheriff  had  not  authority  to  receive,  J.  S.  personally  is  lialile  for,  and  not 
the  official  bond  of  the  slieriff.  But  should  the  sheriff,  having  writs  which  au- 
thorize him  to  collect,  exact  from  the  debtor  more  than  was  lawfully'  required, 
even  without  levy,  the  payment  is  not  voluntary,  and  it  is  a  violatiou  of  his 
official  bond. 

Before  Wardlaw,  J.,  at  Beaufort,  January  Term,  1842. 

This  was  a  suggestion  of  breach  on  the  official  bond  of  William  B. 
Buckner,  late  sheriff  of  Beaufort  district,  a  judgment  having  been  pre- 
viously obtained  therefor.  The  breach  alleged  was  an  exaction  by  the 
sheriff,  from  the  plaintiff,  under  and  by  virtue  of  sundry  executions  in  his 
office,  of  the  sum  of  two  hundred  and  fifty-six  dollars  and  tliirty-two 
cents,  over  and  above  the  amounts  due  on  the  said  executions.  Plea, 
the  general  issue  The  plaintiff  *being  admitted  to  have  proved  r^ogo 
his  case,  the  defendant  moved  for  a  nonsuit,  on  the  ground  that  '- 
the  exaction  complained  of,  not  having  been  made  by  actual  levy  and 
sale  under  the  execution,  was  no  breach  of  the  condition  of  the  sherift''s 
bond,  and  the  motion  was  sustained. 

From  which  the  plaintiff  appealed,  on  the  grounds  : 

1.  That  the  cause  of  action  was  rightly  suggested,  as  a  breach  of  the  sheriff's 
official  bond  :  and, 

2.  That  the  judgment  was,  otherwise,  contrary  to  law. 

Mr.  RlieU,  for  the  motion,  cited  1  McCord  Rep.  395  ;  Cheves'  Rep.  113. 
McCarthy,  contra. 

Curia,  per  Wardlaw,  J.  This  case,  like  another  between  the  same 
parties,  just  decided,  was  heard  upon  a  report  prepared  by  counsel,  after 
a  jjro  forma  decision  on  the  circuit ;  and  to  the  other,  reference  may  be 

(a)  4  Strob.  31.     An. 


558  CHARLESTON,  FEBRUARY,  1842.      VOL.  IL  [*328 

had  for  the  opinion  of  this  Court  as  to  the  practice  in  suggestions  after 
a  judgment  upon  a  sheriff's  bond,  and  as  to  tlie  general  measure  of  lia- 
bih'ty  on  sucli  bond. 

What  in  this  case  is  called  a  nonsuit,  might  have  been  better  called  an 
order  to  quash  the  suggestion. 

Where  a  sheriff  has  no  process  giving  him  authority  to  receive,  a  per- 
son who  pays  to  his  deputy  cannot  look  to  him  ;  Chiles  vs.  Holloway,  4 
McCord,  164  ;  and  if  one,  deceived  by  no  show  of  authority,  should  pay 
to  J.  S.,  himself,  then  being  sheriff,  that  which  a  sheriff  had  not  authority 
to  receive,  his  recourse  would  be  to  J.  S.,  personally,  and  not  to  the 
sheriff's  bond.  But  where  a  sheriff,  having  writs  which  authorize  him  to 
collect,  exacts  from  the  debtor  more  than  can  lawfully  be  required,  even 
w^ithout  levy  the  payment  is  not  voluntary  ;  1  McCord,  395  ;  Cheves's 
L.  R.  113  ;  and  the  sheriff  either  wilfully  abuses  his  office,  or  negligently 
or  unskilfully  performs  his  duty,  so  as  to  violate  the  condition  of  his 
official  bond. 

The  order  of  the  Circuit  Court  is  set  aside,  and  a  new  trial  ordered. 

Richardson,  O'Neall,  Evans,  and  Butler,  JJ.,  concurred. 
See  1  McM.  310.     An. 


*329]  *F.  Y.  PoRCHER  ads.  Richard  Caldwell. 

1.  Where  Ww  unsoundness  of  a  slave  is  known  to  a  purchaser  at  public  sale,  lie 
cannot  maintain  an  action  on  the  implied  warranty  of  soundness. 

2.  Where  a  purchaser  of  a  slave  takes  a  bill  of  sale,  or  written  warranty,  and  omits 
to  insert  a  clause  warranting  the  soundness,  it  is  a  reasonable  inference  that  no 
warranty  of  soundness  was  intended.  The  presumption  of  warranty,  however, 
is  not  conclusively  rebutted,  but  it  is  a  circumstance  which  should  always  be 
submitted  or  presented  to  the  jury. 

Tried   in   the    City    Court,    July   Terra,    1841,  before   his   Honor   the 

Recorder. 

This  was  an  action  of  assumpsit  on  an  implied  warranty  of  soundness 
of  a  negro  woman  named  Lucia,  and  the  following  is  the  testimony  takea 
by  the  Recorder,  on  the  trial  of  the  case  : 

"  Thoman  lii/an,  sworn,  said  he  has  seen  this  woman  ;  ^'^50  is  a  large  price  for  her, 
if  sliR  w<T(>  sound  Cross-examined,  thinks  the  price  of  $350  large,  becanse  she  is 
at  least  furty-soven  years  of  ago  ;  some  at  forty-five  are  worth  less ;  he  has  had  a 
great  deal  to  do  with  negroes  in  the  last  eighteen  months.  In  repli/,  he  said  he  is 
an  auctioneer,  and  has  sold  a  great  many  negroes  ;  his  opinion  is  formed  from  the 
sales  he  lias  made,  and  from  what  his  neighbors  have  made. 

Ih-.  Wariiif/,  sworn,  said  he  was  called  to  see  Lucia  15th  March  last;  attended 
nutil  '22d.  Slie  was  laboring  under  suppression  of  urine;  he  directed  some  mild 
m<-asiir«'H  ;  returned  in  tw()  hours  and  inserted  the  catheter,  and  found  it  was  not 
what  lu^  Huj)p()spd  ;  not  a  wine-glass  of  water  came  from  her  ;  thought  it  then  local 
irritation  d<-pen<liiig  on  diseas(!d  uterus  ;  exaiuined  the  mouth  of  the  uterus,  and 
could  throw  it  up  by  putting  the  hand  on  the  lower  part  of  the  stomach;  lier 
stomach  was  afflicted  witli  a  <liHi)osition  to  vomit,  which  confirmed  his  opinion  as 
to  tlio  character  of  tlu-  diseases  When  he  took  out  the  catheter,  something  i)assed 
on  it  like  matter;  the  woman  at  that  time  was  sickly-looking  ;  since  that  time  she 


*329] 


PORCHER   ads.   CALDWELL.  559 


has  put  on  a  more  improved  appearance ;  this  disease  is  the  commencement  of 
cancer  ;  lie  would  not  have  given  $50  for  her  ;  her  disease  will  be  a  protracted  one, 
and  attended  *with  great  exjiense,  requiring  frequent  applications ;  her  r^qoQ 
appearance  now  is  to  be  attributed  to  the  mildness  of  the  weather ;  it  will  '■ 
require  free  secretions  to  allay  the  pain.  The  disease  is  incura))le  ;  it  brings  the 
patient  down  to  emaciation;  his  food  is  opium.  There  is  notliing  in  her  looks  to 
indicate  such  a  disease  ;  she  is  delicate  looking ;  witness  notified  Dr.  Porcher  of  it ; 
he  was  nor  aware  of  the  seat  of  the  disease  he  knew  her  to  be  unsound ;  he  had 
frequently  attended  her.  (iladsden  informed  witness  about  that  time,  that  a  first- 
rate  cook  would  be  worth  $500  ;  don't  think  this  negro  worth  $350  if  she  had  been 
sound ;  he  examined  lier  two  afternoons  since,  with  Dr.  North ;  he  entertains  the 
same  opinion  of  her  disease  ;  the  disease  must  have  existed  more  than  thirteen 
years,  Cross-exn mined,  he  said  she  may  live  fifteen  years  ;  but  her  suflerings  will 
increase,  and  lier  ability  to  bear  them  will  decrease. 

It  was  here  admitted  that  the  negro  was  tendered.     Bill  of  sale  dated  27th  Jan- 
uary, 1841.     Here  the  plamtilf's  testimony  closed. 

Defence. 
Dr.  North,  sworn,  said  he  has  seen  Lucia  lately ;  never  saw  her  before  ;  the 
disease  must  have  existed  fifteen  years.  She  might  live  fifteen  years,  but  in  in- 
creasing pains  ;  she  is  looking  very  Avell  now ;  she  is  capable  of  service.  A 
disease  may  exist  a  long  time,  and  a  patient  go  off  by  some  other  disease  ;  this  is 
not  usual ;  it  is  difficult  to  say  what  may  be  the  result  of  this  case.  Cross-ex- 
amineil,  he  said  Dr.  P.  said  he  had  never  examined  the  woman  ;  had  attended  her, 
but  not  for  this  disease  ;  this  disease  may  lay  her  up  for  a  year;  this  is  usual ;  she 
may  die  suddenly  ;  this  attack  must  have  been  more  violent  than  usual,  as  Dr. 
P.'s  attention  was  not  attracted;  the  paiu  increases  with  the  duration  of  the  dis- 
ease. 

Copji   inventory  of  Mrs.    Rebecca    Drayton's   estate  was   produced,    and   Lucia 
included. 

W.  B.  T.  Schroudy,  sworn,  said  he  knows  Lucia,  she  belonged  to  Mrs.  Dray- 
ton ;  he  collected  the  wages  of  this  woman  from  William  A.  Caldwell,  in  Mrs. 
Drayton's  lifetime,  in  1839  ;  as  agent  for  Mrs.  D.,  he  put  her  in  Stock's  hands  for 
sale ;  Colcork  would  have  given  $600,  if  she  had  been  willing  to  live  with  him  ; 
witness  would  have  given  *$t;00  for  her  ;  she  was  a  long  time  in  the  employ-  r*oo-j^ 
nient  of  Caldwell.  Cross-examined,  he  said  in  1839  she  left  Caldwell  and 
went  to  some  one  else. 

Thoman  N.  Gadsden,  sworn,  said  he  was  employed  to  sell  the  estate  of  Drayton  ; 
Lucia  was  part  of  it.  CaUhcdl  applied  to  him  to  purchase  Lucia ;  he  asked  him 
$500  for  her;  he  refused  to  give  that,  said  she  was  unsound,  and  that  could  not 
be  got  for  her.  At  auction  tlie  woman  declared  she  was  unsound  ;  Caldwell  bid 
$350  ;  witness  run  her  up  to  $395,  and  knocked  her  diiwii  to  Caldwell ;  he  refused 
to  take  her  at  that,  but  proposed  to  take  her  at  his  bid  of  $350.  lie  said  he  knew 
the  negro  well,  she  was  unsound;  she  had  been  in  his  employ ;  he  communicated 
Caldwell's  proposition  to  Dr.  P.;  he  assented;  when  he  told  Dr.  P.  that  Caldwell 
said  she  was  unsound,  he  did  not  seem  to  know  it ;  witness  could  have  got  $500 
for  her  if  she  had  been  sound.  Cross-examined,  he  said  he  run  her  up  to  §395, 
and  put  the  bid  to  Caldwell ;  he  refused  to  sanction  this,  but  offered  his  old  bid  of 
$35(1.  Witness  said  nothing  at  the  sale  about  the  unsoundness  of  Lucia ;  he  was 
one  of  the  appraisers  of  Mrs.  Drayton's  estate  ;  nothing  was  said  of  Lucia  particu- 
larly at  that  time." 

Here  the  testimony  closed,  and  liis  Honor  charged  the  jury  that  a  sound 
price  warranted  a  sound  article,  sinuiued  up  the  evidence  ou  this  point, 
and  sul)niitted  the  tpiestiou  to  them. 

His  Honor  further  charged  them,  that  if  they  came  to  the  conclusion  that 
the  full  value  of  the  negro,  if  sound,  had  been  paid  for  her,  that  still  this 
afforded  but  a  presumption  of  a  warranty ;  and  submitted  to  them, 
whether  the  other  facts  in  the  case  did  not  rebut  that  presumption.  If 
Gadsden's  testimony  was  lo  be  believed,  Caldwell  knew  that  the  negro 


560  CHARLESTON,  FEBRUARY,  1842.      VOL.  H.  [*331 

was  unsonud  ;  that  she  had  been  for  some  time  in  the  employment  of  the 
family  ;  that  at  the  sale  the  wench  had  declared  she  was  unsound  ;  that 
plaintiff  bid  at  the  sale  $350  for  her  ;  that  Gadsden  run  her  up  to  $395, 
and  knocked  her  down  to  plaintiff,  and  tendered  her  to  him  at  that  price ; 
that  he  declined  this,  but  renewed  his  offer  for  $350,  on  the  ground  that 
she  was  unsound,  and  could  bring  no  more  ;  that  the  negro  was  as  well 
^ooc)i  "0"'  f's  she  had  been  for  the  last  ten  years,  and  might  live  fifteen* 
-'  years  longer.  It  did  appear  to  his  Honor,  and  he  so  charged,  that 
with  a  knowledge  of  all  these  facts,  the  plaintiff,  failing  to  demand  an 
express  warranty,  ought  to  be  regarded  as  assuming  the  risk  of  the  result 
of  the  case  upon  himself,  and  that  he  had  uo  claim  for  indemnity  from 
the  defendant. 

The  jury  rendered  a  verdict  for  the  full  price  paid  for  the  negro. 

The  defendant  appealed  for  a  new  trial  in  this  case,  on  the  grounds : 

1.  That  there  was  no  evidence  of  a  warranty,  expressed '  or  implied  ;  'and 
that  there  was  no  evidence  of  notice  ;  so  that  the  verdict  is  against  all  the 
evidence  in  the  case,  contrary  to  law,  and  against  the  charge  of  the  Court. 

2.  That  the  jury  have  found  that  the  contract  is  rescinded  without  any 
evidence  of  a  recision. 

Petigru  and  Lesesne,  for  the  motion. 

McCrady,  contra. 

Curia,  per  Evans,  J.  Our  decisions  continued  through  a  long  series 
of  years,(f/)  fully  established  as  settled  law,  that  were  a  full  price  is  paid 
for  a  negro,  and  it  is  afterwards  discovered  that  the  negro  was  diseased 
at  the  time  of  the  sale,  the  purchaser  may  recover  back  the  purchase 
money,  or  have  an  abatement  in  the  price,  according  to  the  degree  of 
unsoundness.  This  is  equally  the  case,  whether  there  be  an  express 
warranty  or  not;  the  law  in  the  latter  case  implies  a  warranty  from  the 
fact  that  a  full  price  has  been  paid.  It  is  equally  well  settled,  that  the 
purchaser  may  recover  on  the.  implied  warranty  of  soundness,  although 
he  has  taken  an  express  warranty  of  title.  None  of  these  decisions  have 
I  any  disposition  or  intention  to  assail,  although  if  the  question  were  now 
made  for  the  first  time,  the  propriety  of  them  might  well  be  doubted. 

The  plaintifi''s  right  to  recover  rests  upon  a  presumption  of  law;  the 
law,  in  the  absence  of  proof  to  the  contrary,  presumes,  from  the  fact  that 
a  full  price  was  paid,  that  the  seller  intended  to  warrant  the  soundness 
iiiooo-\  ff  the  proi)crty.  But  this  is  a  naked  prcsnra|)tlon,  and  may  be 
'^-'  r(;butted*  by  proof  to  the  contrary,  or  by  circumstances  which  may 
lead  to  a  contrary  conclusion.  (?>)  Thus  there  can  be  no  doubt  that  an 
express  declaration  that'  the  seller  will  not  warrant,  effectually  destroys 
the  presumption.  So,  also,  it  has  always  been  held,  that  where  the 
nnsoundnoss  was  known  to  the  buyer,  he  could  maintain  no  action  on 
the  implied  warranty.  Besides  these,  there  are  many  other  facts  which 
altiiough  not  so  conclusive,  go  to  rebut  the  presumption.  Among  these 
i.s  the  omission  to  insert  the  warranty  in  the  written  contract,  where  there 
is  one.     If  the  purchaser  takes  no  written  warranty  he  trusts  wholly  to 

(a)  Soo  TimrodvH.  Shorlhrnd,  1793,  1  Bay.  324;  Watson  vs.  Boatwriglit,  \  Rich. 
40'.i ;  SUrvnx  VH.  CItoppell,  3  Strob.  83  ;  Crouch  vs.  CulbreatL  11  Rich.,  10.     An. 
(Jb)  3  Rich.  4G4.     An. 


*333]  PORCHER   ads.    CALDT^'ELL.  561 

his  implied  warranty,  both  as  to  title  and  soundness ;  but  where  he  takes 
a  written  warranty  of  title,  and  omits  the  warranty  as  to  soundness,  it  is 
certainly  a  fair  argument  to  deduce  from  this  the  inference,  that  there 
was  an  absence  of  intention  to  warrant  beyond  what  is  contained  in  the 
written  title. (a)  I  do  not  say  that  the  presumption  is  concjusively  rebutted 
by  this;  but  it  is  a  circumstance  entitled  to  consideration,  and  should  i)e 
presented  always  to  the  notice  of  the  jury.  The  evidence  in  this  case  is 
that  the  disease  was  chronic,  and  had  existed,  the  doctor  thought,  f(^r 
thirteen  years  at  least.  Caldwell  told  Gadsden  he  knew  her  well,  she 
was  unsound,  he  had  her  in  his  service,  and  the  woman  herself  declared 
at  the  sale  she  was  unsound.  If  these  facts  are  true,  there  can  be  no 
doubt  that  Caldwell  took  the  risk  of  soundness  on  himself,  and  his  omis- 
sion to  have  the  clause  of  warranty  of  soundness  inserted  in  the  title, 
would  seem  to  lead  to  the  conclusion  that  no  warranty  of  soundness  was 
intended  or  expected.  But  is  said  that  everything  which  happened  at  the 
time  of  the  sale  is  established  by  the  evidence  of  (iadsden,  the  auctioneer, 
alone,  and  that  the  jury  were  the  proper  judges  of  the  extent  to  which 
they  could  confide  in  his  recollection  of  the  facts.  This  is  true,  and  if 
that  were  the  only  circumstance,  I  should  be  disposed  to  let  the  verdict 
stand,  as  we  have  done  in  many  other  cases.  But  there  are  other  circum- 
stances. It  appears  from  the  evidence  of  Schroudy,  that  she  had  been 
in  the  employment  of  Caldwell  and  his  family,  and  it  is  a  fair  inference 
that  the  exisience  of  this  chronic  disease  was  known  to  him,  or  at  least 
that  he  knew  she  was  unhealthy,  and  should  not  have  purchased  r:i:r,.T< 
without  the  security  of  a  warranty.  Besides  this,  it  does  not  ap-  '- 
pear  that  the  important  fact,  that  he  took  a  written  warranty  of  title 
without  a  warranty  of  soundness,  was  brought  to  the  view  of  the  jury  as 
one  of  the  facts  which,  connected  with  the  others,  would  lead  to  the  con- 
clusion there  was  no  warranty  intended  or  expected.  The  motion  is 
therefore  granted. 

O'Neall,  Bltler  and  "Wardlaw,  JJ.,  concurred. 

Earle,  J.,  absent. 

(a)  Sup.  20.     A7i. 

See  2  Rich.  470.     Also  Wood  vs.  Ashe,  1  Stroli.  407  ;  3  Strob.  G4.     An. 


YOL.  I.— 37 


CASES    AT    LAW 

ARGUED  AND  DETERMINED.  IN  THE 

LAAY  COUliT  OF  APPEALS  OF  SOUTH  CAllOLIM. 

Columbia,   gTaj),  1842. 


JUDGES   PRESENT. 

HON.  JOHN  S.  RICHARDSON,  HON.  BAYLIS  J.  EARLE, 

"      JOHN  BELTON  O'NEALL,  "    ANDREW  PICKENS  BUTLER. 

"      JOSIAH  J.  EVANS, 

Wakdlaw  J.,  absent,  liokliiig  tlie  Circuit  Court  in  Clxarleston. 


Walter  V.  Foster  vs.  William  Gault. 

1.  A  constable,  in  the  discharge  of  an  official  duty,  is  not  bound  or  required  by 
law  to  look  beyond  the  process  which  requires  him  to  act.  If  the  Court  issuing 
tlie  iirocess  has  jurisdiction  over  the  matter  in  wliich  he  is  required  to  ac't,  it  is 
lii.s  duty  to  execute  the  process.  He  is  neither  permitted  or  required  to  look 
beliind  it  to  see  if  the  Court  has  done  its  duty,  and  complied  with  all  that  the 
law  i-equires  as  a  prerequisite  to  the  issuing  of  the  process. 

2.  A  ministerial  officer,  whose  duty  it  is  to  execute  a  jjrocess,  is  justifiable  under 
tliat  process,  unless  it  be  void,  and  not  merely  voidable. 

Before  Evans,  J.,  at  Union,  Spring  Term,  1842. 

Tliis  was  an  action  of  trover,  under  the  following  circunistauees.  One 
William  llunnells  sued  out  a  domestic  attachment  against  the  plaintiff 
and  his  fallier,  William  1\  Foster,  for  a  debt  under  $20.  The  process  was 
placed  in  the  hands  of  the  defendant,  an  acting  constable  of  the  district, 
*3Q,;-|  who  seized  upon  and  took  into  his  possession  *a  mare,  the  subject 
of  this  action.  The  evidence  was  very  satisfactory,  that  the  mare 
was  the  jiroperty  of  the  plaintilT.  The  magistrate  condemned  the  mare 
tf)  be  sold,  to  satisfy  the  jiidgnient  in  favor  of  llunnells,  and  the  con- 
staljle,  in  piirsmmce  of  this  order,  sold  the  mare.  This  was  the  conver- 
sion complained  of. 

The  magistrate  slated,  that  before  issuing  the  attachment,  he  took  a 
bond  from  the  plaintilf,  HiinncUs,  but  did  not  reipiire  security,  as  he  was 
amply  .sullicicnt.     The  presiding  Judge,  in  his  report,  states  that  "/  do 


*336J  FOSTER   VS.    GAULT.  5G3 

not  remember  the  words  of  the  affidavit,  but  I  think  they  xcere  sub- 
stantidlhj  what  is  required  by  the  attachment  Acta.^^ 

The  jury  were  chari>;ed  by  the  court,  tliat  so  far  as  the  constable  was 
concerned,  it  was  wholly  immaterial  whether  there  was  security  to  the 
bond  or  not.  The  question  was,  whether  the  constable,  a  mere  execu- 
tive olficer,  was  bound  to  look  beyond  the  {)reee[)t  under  which  he  acted. 

The  jury  found  for  the  defendant,  and  the  plaintiff  appealed,  on  the  following 
grounds : 

1.  Because  his  Honor  the  presiding  Judge  erred  in  charging  the  jury  that 
a  magistrate's  judgment  and  order  for  sale,  predicated  on  a  domestic  attach- 
ment, in  a  case  where  the  plaintiff  in  attachment  had  not  given  bond  with 
surety,  as  the  law  directs,  to  indemnify  the  defendant,  was,  nevertheless, 
sufficient  to  justify  the  constable  in  selling  the  defendant's  property. 

2.  Because  the  affidavit  of  the  plaintiff  in  attachment,  under  which  the 
property  of  this  plaintiff  was  sold,  was  informal,  and  consequently  the  magis- 
trate's order  for  sale  void,  and  conferred  no  power  on  the  defendant  to  sell  the 
plaintiff's  property. 

3.  Because  the  law  and  evidence  entitled  the  plaintiff  to  recover. 

TIerndou,  for  the  motion,  cited  Acts  1839,  p.  29,  sec  30,  («)  aftd  contended  that 
a  magistrate's  jurisdiction  being  a  bmitcd  one,  and  liavinsx  no  otlier  powers,  the 
party  should  hring  liimself  nnder  tlae  specific  provisions  of  the  Act ;  and  he  referred 
to  the  case  of  ILiiijiiod  vs.  Hunter,  1  JlcCord,  511.  It  is  necessary,  in  all  process 
issuing  from  an  inferior  ^jurisdiction,  that  the  magistrate  should  specify  i)ar-  r*qo7 
ticularly  the  authority  under  which  he  acte<l,  and  show  the  facts,  in  order  '- 
to  justify  the  constable,  and  enable  him  to  show  that  the  magistrate  had  jurisdic- 
tion over  the  matter.     Cited  1  N.  &  McC.  227  ;  Chev.  Rep.  5,  Derail  vs.  Tajlor. 

A.  W.  Thompson,  contra,  said  our  constables  must  be  protected.  The  constable 
in  this  matter  was  not  required  to  know  or  look  beyond  the  process  under  which 
lie  acted.  The  constable's  ofiice  is  one  of  rather  an  inferior  grade,  and  it  is  difficult 
often  to  ol)tain  competent  men  to  fill  those  oltices ;  and  unless  they  are  protected 
by  law,  no  respectable  and  competent  i^ersons  can  be  found  to  fill  them. 

Curia,  per  Evans,  J.  The  objections  made  to  the  verdict  in  this 
case  are — 1st :  that  the  magistrate  took  the  ])laintiff's  bond  without 
security,  as  required  by  law.  2d  :  because  there  was  an  informality  in 
the  affidavit  u[iou  which  the  attachment  issued.  In  relation  to  this  last 
objection,  it  does  appear  that  the  affidavit  does  not  follow  verbatim  the 
words  of  the  Act  of  1785,  P.  L.  368,(6)  though  in  substance  it  recites  a 
case  wherein  the  magistrate  had  jurisdiction.  The  words  of  the  affidavit 
are,  "  that  they  (the  defendants)  have  absconded,  and  are  about  to 
remove  their  effects  out  of  this  State,  or  so  conceal  themselves  that  the 
ordinary  process  of  law  cannot  be  served  on  them."  The  words  of  the 
7th  clause  of  the  Act  giving  the  magistrate  jurisdiction,  are,  "is  about 
to  remove,  or  is  removing,  out  of  the  county  privately,  or  so  absconds  or 
conceals  himself  that  a  warrant  or  summons  cannot  be  served  on  him." 
In  the  view  which  this  court  takes  of  the  case,  it  is  unnecessary  to  ex- 
l)rcss  any  opinion  ou  this  jiart  of  it.  The  defendant  is  a  constaide,  and 
the  law  does  not  and  ought  not  to  require  that  he  should  look  beyoml  the 
process  which  requires  luni  to  act.  If  the  process  issue  from  a  court 
having  jurisdiction,  it  is  his  duty  to  execute  it.  He  is  neither  permitted 
or  required  to  look  behind  it  to  see  if  the  court  has  done  its  duly,  and 

(a)  11  Stat   IS.  ?  IS.     An. 

(6)  County  Court  Act,  7  fctat.  214  §  6.     An. 


564  COLUMBIA,   MAT,    1842.      VOL.  II.  [*337 

complied  with  all  that  the  law  requires  as  a  prerequisite  to  the  issuing  of 
tlie  process.  In  this  case,  the  attaclimeiit  was  levied  on  the  mare,  and 
returned  to  the  mag-istrate,  who  thereupon  gave  judgment  for  the  plain- 
^„„„-|  tiff,  and  ordered  the  sale  of  the  property  ^attached,  to  satisfy 
-'  the  judgment.  It  was  under  this  order  the  defendant,  Gault, 
acted  when  he  sold  the  mare,  which  was  the  only  conversion  alleged  or 
proved  at  the  trial.  There  is  a  wide  distinction  between  those  who  issue, 
or  procure  to  be  issued,  an  irregular  legal  process.  The  magistrate 
might  sometimes  be  liable — the  party  procuring  the  process  to  issue, 
would,  in  general,  be  liable — but  the  ministerial  officer  whose  duty  it  is 
to  execute  it,  is  justifiable,  unless  the  process  be  void,  and  not  merely 
voidal)le.  There  is  no  pretence  to  say  the  authority  under  which  the 
defendant  acted  was  void.  The  case  was  within  the  jurisdiction  of  the 
magistrate.  The  constable  was  not  bound  to  enquire  as  to  the  affidavit, 
or  whether  the  magistrate  had  taken  security  to  the  bond. 
The  motion  is  dismissed. 

Richardson,  O'Neall,  Earle,  and  Butler,  JJ.,  concurred. 

See  5  Rich.  64,  478;  4  Rich.  5G1;  4  Strob.  290,  Cliev.  5;  1  McM.  264,  4C0.    An. 


Addison  F.  Posey  vs.  Franklin  Branch. 

Where  a  writ  was  tested  on  the  4tli  day  of  Marcli,  1842,  and  made  rcturnalile  to 
tlie  3d  Monday  in  March  next,  it  was  held  that  the  3d  Monday  in  March  might 
well  indicate  the  3d  Monday  after  the  test  of  the  4th  of  March,  1842,  or  the  3d 
Monday  next  after  the  4tli  of  March. 

Before  Richardson,  J.,  at  Abbeville,  Spring  Term,  1842. 

This  was  a  motion  made  a  quash  a  writ  or  process  as  a  nullity,  under 
the  following  circumstances.  The  writ  was  tested  on  the  fourth  day  of 
March,  1842,  and  made  returnable  to  the  third  Monday  in  March  next. 
The  motion  was  refused  by  his  Honor,  the  presiding  Judge,  who  ruled 
in  the  case  as  follows  :  "that  "the  third  Monday  in  March"  might  well 
indicate  the  third  ]\ronday  after  the  test  of  the  fourth  of  March,  1842, 
(the  first  Monday  being  the  seventh  of  the  same  month,  thus  rejecting 
j^qqn-i  tlie  word  "*'■"  next,"  or  applying  it  thus,  "  the  third  Monday"  next 
^^^'^J  after  the  fourth  of  March. 

This  construction  would  support  the  process,  ut  res  magis  valeat 
q^am  peral ;  which  ought  to  be  the  judicial  aim  to  carry  out  the  evident 
intention,  to  render  the  return  legal. 

The  case  of  Adams  and  Scott,  12  "Wendell,  p.  218,  was  in  point. 
There,  the  test  being  the  seventh  of  July,  returnable  the  eighth  of  July 
"next,"  it  was  construed  to  mean,  not  the  eighth  of  July  next,  but  the 
eighth  of  July  next  after  the  test  of  the  seventh  of  July  instant. ^^ 

From  this  decision  tlie  defendant  ajipcaled,  and  renewed  his  motion  in  the 
Appeal  Court,  to  (jnash  tlie  writ,  on  tlie  ground  of  error  in  tlie  presiding  Judge. 

lT7/.son,  for  tlic  motion,  cited  3  Chitty  Gen.  Pr.  S.*) ;  3  Wils.  Rep.  341,  344;  2  H. 
Blackrtto.fie,  845;  2  Brev.  Dig.  168.     12  Wend.,  as  referred  to  by  the  Court,  Mr. 


*339]  THOMASSON  VS.    KERR.  565 

Wilson  contended  was  no  authority  for  this  Court ;  cited  2  Johns.  Rep.  190,  Burns 
vs.  Thomas  Sj- KiiKj ;  C'alhouit  vs.  liejjnolds,  1  McMuIIen,  3U4 ;  Harper  \&.  Scuddi/, 
lb.  2G5. 

Percival,  contra. 

Per  Curiam.     The  court  concurs  in  tlie  construction  put  by  the  pre- 
siding Judge,  and  the  motion  is  therefore  dismissed. 

See  1  McM.  304.     An. 


*W.  P.  TrioMAssoN  vs.  Wm.  M.  Kerr.  [*340 

The  Same  vs.  Samuel  Burns. 

A  prisoner,  confined  in  jail  under  execution  or  mesne  process,  is  bound  to  maintain 
himself  so  long  as  he  has  the  means  ;  and  where  a  sheriflf  or  jailor  has  in  his  cus- 
tody a  prisoner,  confined  either  under  execution  or  final  process,  before  he  can 
recover  pay  for  the  maintenance  of  such  prisoner,  from  the  plaintifF  at  whose  suit 
the  prisoner  is  confined,  he  must  show  that  the  i^risoner  has  no  means  of  paying 
his  jail  fees,  and  nothing  out  of  which  he  can  be  supported. 

Before  Evans,  J.,  at  York,  Spring  Term,  1842. 

The  plaintiff  is  sheriff  of  York,  and  claimed  a  right  to  recover  against 
the  defendants  under  the  following  circumstances  :  Kerr  and  Burns  had 
recovered  against  one  John  Evans,  in  separate  actions,  a  large  amount 
of  money,  on  actions  of  assault  and  battery.  Evans  was  about  to  remove 
from  the  State  at  the  time  of  the  committing  the  batteries  ;  he  was  held 
to  bail,  and,  after  verdict,  surrendered  himself  in  discharge  of  his  bail. 
This  was  six  or  seven  years  ago,  and  he  has  remained  in  jail  ever  since. 
lie  had  in  possession,  at  the  time  of  his  removal,  fifteen  or  eighteen 
negroes,  which,  with  the  rest  of  his  property,  was  left  in  Alabama,  wlieu 
he  returned  to  surrender  himself.  After  his  surrender,  he  applied  to  lie  dis- 
charged on  a  surrender  and  assignment  of  his  property ;  but  his  discharge 
was  olijected  to,  and  refused  on  the  ground  that  he  had  not  produced  the 
property  to  be  delivered  to  the  assignee,  as  required  by  the  Act  of  1833. 
In  the  schedule,  his  claim  to  the  negroes  is  set  down,  and  their  price  esti- 
mated at  eight  or  nine  thousand  dollars.  It  was  clearly  proved  that 
Evans  had  no  jiroperty  whatever  in  this  State,  but  no  account  was  given 
as  to  what  had  become  of  his  property  carried  to  Alabama. 

These  actions  were  to  recover  from  each  of  the  defendants  half  the 
jail  fees  for  feeding  Evans  since  the  present  sheriff  came  into  office. 

The  presiding  Judge,  held  "that  after  the  decision  in  the  case  of  3IrClane 
vs.  Ilaine,  the  Act  of  ISn(a)  was  passed  to  provide  for  the  maintenance 
of  persons  confined  in  civil  cases.(6)  By  the  1st  section,  if  the  prisoner 
assigns  his  property,  the  assignees,  out  of  the  assigned  estate,  are  to 
*pay  the  jail  fees,  and  in  default  of  that  fund,  the  plaintiff  is  made  r^i.-., ,, 
liable.  By  the  2d  section,  if  the  prisoner  refuses  to  assign,  the  ^ 
sheriff  is  not  bound  to  feed  him.  Evans's  case  comes  under  the  latter 
provision,  and  if  the  law  had  remained  as  it  was  by  the   Act  of  1817 

(«)  3  Brev.  291.     An.  (/;)   G  Stat.  GQ.     An. 


566  COLUMBIA,    MAY,    1842.      YOL.  II.  [*341 

it  is  clear  tlic  plaintiff  could  not  recover  ;  but  in  1839(a')  another  Act  was 
passed.  By  that  it  is  provided  that  whenever  the  prisoner  has  no  lands, 
goods,  chattels,  or  choses  in  action,  out  of  which  to  pay  his  jail-fees,  the 
plaintiff  shall  be  liable.  This  Act  having  made  provision  in  cases  where 
110  assignment  is  made  for  the  maintenance  of  the  prisoner,  the  sheriff  is 
bound  to  feed  him,  and,  as  a  consequence,  has  a  right,  in  cases  where 
the  defendant  has  no  lands  or  goods,  to  demand  the  payment  of  his  fees 
from  the  plaintiff'.  In  this  view  of  the  law  of  the  case,  the  oidy  question 
■was,  whether  the  defendant,  Evans,  had  any  such  property  as  the  sheriff 
was  bound  to  look  to  for  the  payment  of  his  fees,  before  resorting  to  the 
defendants  in  these  eases.  I  thought  he  had  not,  and  decreed  for  the 
plaintiff." 

From  the  above  decree  the  defendants  appealed  : 

1.  Because  it  is  respectfully  submitted  that  his  Honor  erred  in  holding  that 
to  enable  a  sheriff  or  jailer  to  recover  for  the  board  of  a  debtor,  it  is  sufficient 
to  show  that  the  debtor  has  no  property  within  the  limits  of  the  State,  or  within 
the  jurisdiction  of  the  Court. 

2.  Because  it  is  respectfully  submitted,  that  to  give  to  the  Act  the  construc- 
tion contended  for,  would  be  to  enable  a  fraudulent  or  contumacious  debtor  to 
throw  his  maintenance  in  jail  on  his  creditors,  and  thereby  effect  his  release. 

3.  Because,  from  the  evidence,  it  was  manifest  that  the  debtor  was  in 
possession  of  a  large  estate  beyond  the  limits  of  the  State,  and  which  he 
obstinately  refuses  to  surrender  according  to  law. 

4.  Because  the  testimony  offered  on  the  part  of  defendants,  showins;  a  large 
amount  of  property  belonging  to  the  debtor  in  the  west,  negatived  the  idea  of 
his  insolvency. 

ITcrndon,  for  the  motion,  said  the  only   question  now  is,  is  Evans  released? 

Evans  is  not  confined  in   jail  hecanse  lie  has  refused  to  make  an  assignment, 

but  liecausc  he  has  refused  to  comply  with  the  Act  of  183.3, (b)  requiring  him  to 

^o  foi   *  deliver  liis  property.     Cited  Act  1829,  p.  48,  sec.  30  ;   1  McC.  ISl ;  3  Hill, 

-■  294 ;  Bryant  vs.  Ellis,  Dudley,  71. 

A.  W.  Thompson,  contra,  cited  Plowden,  68;  county  court  Act,  P.  L.  308:  1 
Faust,  249,  and  Act  of  '97,  68.  (r) 

Mr.  Witherspoon ,  for  the  motion,  submitted  a  wiitten  argiiment  to  the  court  in 
this  case,  but  the  reporter  has  not  been  furnished  with  it. 

Curia,  per  Butler,  J.  By  the  Acts  of  1811  and  1833,  a  prisoner 
confined  for  debt  is  required  both  to  make  an  assignment,  and  to  deliver 
to  the  assignee  the  effects  contained  in  his  schedule,  before  the  plaintiff 
can  be  required  at  all  to  pay  his  jail  fees.  After  assignment  and 
delivery,  the  plaintiff  in  execution  or  mesne  process  may  be  required  to 
]tuy  for  the  sul)sistence  of  the  prisoner,  provided  the  assignee  has  not 
enough  to  satisfy  the  same,  and  the  prisoner  himself  is  unable  or  refuses 
to  ])ay,  &c.  In  the  case  before  the  Court,  the  prisoner,  Evans,  has  not 
C'.niplicd  with  the  ref|nisitions  of  these  Acts.  In  the  first  instance,  it  is 
prolialde  that  he  wilfully  refused  to  comply  with  the  provisions,  and  it 
may  l)e  now  that  he  is  unable  to  do  so.  It  must  be  remarked,  however, 
that  he  lias  reduced  himself  to  his  present  situation  by  his  own  contnmac^^ 
urising,  perhaps,  ont  of  a  deliberate  design  to  deprive  the  defendants  of 
the  beiielit  of  their  recovery  against  him.     The  case  of  Bryant  vs.  Ellis, 

(")  11  Stat.  31,  g  30.     An.  n,)  Q  Stat.  491.     An. 

(r)  7  Stat.  226.     An. 


*342]  THOMASSON  VS.    KERR.  5G7 

Pudley,  71,  involved  tlie  question,  wliethcr,  nndor  the  tlicn  cxistiiio;  Acts> 
the  sheriff  was  entitled  to  recover  of  a  plaiiitiif  who  had  lodjred  process 
ap:ainst  the  same  prisoner  whose  case  is  now  before  the  Court,  the  amount 
of  his  jail  fees.  The  judijment  of  the  Court,  for  the  entirely  satisfactory 
reasons  assigned  in  it,  was  against  the  demand  of  the  sheriff.  As  far  as 
we  are  informed,  the  situation  of  Evans,  since  that  time,  has  been  in  no 
wise  changed;  that  is,  he  has  neither  made  an  assignment  or  surrendered 
his  property;  and  but  for  the  Act  of  1839,  it  is  conceded  the  sheriff 
would  be  without  remedy  The  sherifTs  right  to  recover  in  this  action 
depends  entirely  on  the  construction  of  the  last  Act  referred  to.  The 
30th  section  of  the  Act  of  1839,  ])age  31,  is  in  the  following  words: 
"When  any  person  shall  be  taken  on  mesne  or  final  process,  in  any  civil 
suit,  and  from  inabiUly  to  pay  fhe  demand,  debt  or  damages,  or  find 
bail  if  *committed  to  jail,  and  such  person  has  no  lands,  tene-  r-.,..,  ..^ 
vients,  goods,  chattels,  or  choses  in  action,  whereby  his  mainte-  -  "^  '■' 
nance  in  j«il  can  be  defrayed,  the  plaintiff,  or  person  at  whose  instance 
such  person  shall  be  imprisoned,  shall  pay  and  satisfy  the  same  ;  or  if 
such  person,  or  his  attorney,  shall  refuse  or  neglect,  after  ten  days'  pre- 
vious notice,  to  pay  or  give  security  to  pay  the  same,  when  demanded, 
the  sheriff  or  jailor  in  whose  custody  such  prisoner  is,  may  discharge  hini 
from  confinement;  provided,  however,  that  such  prisoner  shall,  before  he 
be  discharged,  render  on  oath,  a  schedule  of  his  estate,  and  assign  the 
same." 

-  At  the  time  Evans  was  committed  to  jail,  he  had  abundant  means  to 
satisfy  the  damages  recovered  by  defendants  ;  and  he  preferred  going  to 
jail  rather  than  subjecting  his  property  to  the  operation  of  a  Ji.  fa.  He 
made  his  own  choice,  and  surrendered  his  person  rather  than  his  property. 
Jlis  going  to  jail  did  not  arise  from  inability  to  satisfy  the  demands 
against  him.  At  that  time  he  left  his  property,  to  come  and  surrender 
himself  in  discharge  of  his  bail ;  and  by  his  voluntary  imprisonment,  he 
has  deprived  his  creditors  of  the  means  and  security  which  they  would 
otherwise  have  had  a  right  to  resort  to,  in  satisfaction  of  their  recovery. 
For,  if  he  had  not  taken  off  his  property  when  first  arrested;  or  if,  after 
he  had  given  bail,  he  had  remained  out  of  the  State,  these  judgments 
would  have  been  satisfied,  cither  by  his  property  or  his  bail  bond.  In 
the  first  instance,  then,  even  under  the  Act  of  1839,  the  prisoner  was  not 
in  a  situation  to  subject  the  defendants  to  liability.  But  in  the  second 
place,  had  he.  at  the  time  these  actions  were  commenced,  no  lands,  goods, 
or  choses  in  action,  whereby  his  maintenance  in  jail  could  be  defrayed  ? 
There  was  no  evidence  that  he  had  divested  himself  of  the  property  wliich 
he  had  when  he  was  committed,  much  less  that  it  had  been  destroyed  or 
wasted,  so  that  it  afforded  no  available  income  subject  to  the  control  of 
the  prisoner.  All  that  was  said  was,  that  the  property  was  out  of  the 
State,  and  could  not  be  reached  by  the  sheriff.  That  may  be,  and  still 
the  prisoner  may  have  abundant  means  at  his  command;  he  may  have 
had  regularly  transmitted  to  him  tiie  proceeds  of  his  crops,  and  have  his 
money  at  interest,  or  in  bank  ;  and  in  such  cases  the  sheriff'  *could  r:i:.T  ,  , 
no  more  reach  it  than  if  it  was  out  of  the  State,  without  an  order  ^ 
from  Evans  himself.  The  inability  to  pay  cannot  depend  on  the  location 
of  the  property,  or  the  peculiar  form  in  which  it  may  exist.  The  fact 
that  a  person's  funds  may  be  abroad,  does  not  deprive  him  of  his  right  to 


568  COLUMBIA,    MAT,    1842.      YOL.  II.  [*344 

control  and  coramand  them  at  pleasure.  They  may  be  drawn  on  by  bill, 
taken  y)ossession  of  by  an  agent,  or  converted  into  money  by  sale.  The 
ability  of  a  prisoner  to  pay  for  liis  subsistence,  must  frequently  depend  on 
his  own  volition  to  command  the  meaa§  in  his  power;  and  when  he 
wilfully  refuses  to  pay,  because  he  does  not  choose  to  command  them, 
this  should  not  constitute  the  inability  contemplated  by  the  Act.  lu 
fact  a  refusal  to  assign  and  deliver,  would,  in  general,  be  evidence  that  he 
had  means,  but  which  he  was  unwilling  his  creditors  should  have  the 
benefit  of.  It  would  be  singular,  indeed,  if  a  wealthy  prisoner  could 
compel  his  creditors  to  support  him  because  liis  property  happened  to  be 
in  another  State;  and  such  might  be  the  case,  where  one  contumaciously 
puts  his  creditors  at  defiance,  by  sending  his  proyterty  away  after  his 
arrest.  What  had  become  of  the  income  of  the  prisoner's  property  for 
the  last  five  years  ?  He  either  has  it  himself,  or  it  is  in  the  hands  of 
agents,  or  the  property  has  be«u  destroyed.  Suppose  that  after  the  tea 
days  notice  prescribed  by  the  Act  of  1839,  the  prisoner  had  been  dis- 
charged, and  thereupon  he  had  filed  his  schedule,  showing  that  he  had 
large  possessions  in  a  ueighboring  State,  or  money  in  bank  in  this  State, 
how  would  this  be  consistent  with  his  inability  to  pay  his  jail  fees  ?  The 
prisoner's  ability  must  not  be  confounded  with  the  shei'iff's  power  to 
enforce  his  remedy,  for  the  latter  must  depend  more  upon  the  description 
than  the  situation  of  assets. 

W'C  think  that  the  sheriif  in  this  case  was  bound  to  have  shown  that 
Evans  was  unable  to  pay,  for  the  want  of  means,  before  he  could  hold 
tlie  present  defendants  liable  to  the  demands  against  them  ;  and  it  may 
be,  that  at  the  time  this  action  was  commenced,  Evans's  means  were 
entirely  wasted  or  destroyed  by  the  act  of  God,  or  by  the  wilful  acts  of 
others,  without  any  fault  on  his  part.  And  if  so,  the  sherifl'  ought  not  to 
Ije  compelled  to  support  him,  but  might  be  authorized  to  discharge  him 
^5,.-|  under  the  *Act,  or  to  compel  the  parties  to  this  suit  to  pay  the 
-■  prisoner's  board ;  for  although  the  prisoner's  contumacy  should 
give  him  no  advantage,  it  should  not  subject  the  sheriff  to  prejudice.  It 
would  seem  to  be  parado.xical  that  any  one  should  be  compelled  to  sup- 
port another  when  he  is  aljundantly  able  to  supi)ort  himself.  As  far  as 
we  can  see,  this  is  Evans's  situation  ;  he  is  requiring  others  to  feed  him 
because  he  has  wronged  them,  aud  does  not  choose  to  sujjport  himself. 
It  may  Ije,  however,  that  he  is  entirely  without  means  ;  and  I  would  not 
have  the  sheritPs  right  to  recover  pay  from  the  present  defendants,  to 
depend  so  much  on  Evans's  original  ability  to  pay  the  demand  for  which 
he  was  committed,  as  upon  the  fact  of  his  inal)ility  to  pay  the  jail  fees  at 
the  time  this  action  was  commenced.  So  long  as  the  prisoner  can  pay, 
the  party  who  committed  liim  is  exempt  from  liability  ;  but  when  it  can 
be  shown  tiiat  he  is  unaljle  to  do  so  from  the  want  of  means,  then  the 
sheriff  may  estal)lish  his  right  to  recover  in  this  action. 

According  to  these  views,  we  think  a  new  trial  should  be  granted. 

PiiciiARDHON  and  Earle,  JJ.,  concurred. 
O'Nkaij.  and  Evans,  J  J.,  dissented. 

See  G  Ricli.  233;  3  Strolj.  101;  1  IlUl'  422;  Dud.  71.     An. 


*346]  LAMAR    &   DANIEL   VS.    REID.  569 


*Lamar  &  Daniel  vs.  William  R.  REiD.(a)  [*346 

Peter  Lamar         vs.  The  Same, 
Felix  Crosslin      vs.  The  Same, 

1.  Wi'its  of  forei.i,'!!  attachment  were  issued  agcainst  the  defendant  and  Jane"  Reid, 
jointly — d(u'lar;iti(ins  against  the  defendant  alone,  suggesting  Jane  Reid  to  be 
the  wife  of  defendant,  /n'ltl  to  be  fatal  on  special  demurrer, 

2.  It  seems  that  the  proper  course  of  discontinuance,  where  two  defendants  have 
been  joined  in  the  same  writ,  is  by  leave  of  the  Court  to  discontinue.  Leave 
to  discontinue  will  never  be  refused,  but  it  must  first  be  obtained.  This  is  the 
usual  practice,  and  this  j)ractice  has  good  reason — so  says  the  Court, 

Before  Richardson,  J.,  at  Abbeville,  Spring  Term,  1842, 

The  facts  of  these  cases  are  as  follows  :  The  plaintiff?;  issued  writs  of 
foreign  attachment  in  each  of  the  above  cases,  against  William  R.  Reid 
and  Jane  Reid,  In  their  declarations  tliey  declared  against  William  R. 
Reid  alune,  suggesting  that  Jane  Reid  was  the  wife  of  William  R.  .Reid. 
To  this  there  was  filed  a  special  demurrer,  for  variance  between  the  writs 
and  the  declarations.  Joinder  in  demurrer.  The  Court  sustained  the 
demurrer,  and-the  plaintiffs  appealed  from  the  decision  of  the  Court  sus- 
taining the  demurrer,  upon  the  subjoined  grounds  : 

1st.  That  his  Honor  erred  in  holding  that  Jane  Reid,  &  feme  covert,  and  wife 
of  defendant,  William  R.  Reid,  had  been  properly  served  and  made  a  party,  by 
process  of  attachment  against  the  property  of  William  R.  Reid. 

2d.  Because,  admitting  that  Jane  Reid,  the  wife,  could  and  had  been  served 
•with  process,  and  made  a  party,  his  Honor  erred  in  holding  that  upon  a  writ 
sued  out  against  husband  and  wife,  a  declaration  against  husband  alone, 
suggesting  the  relation  of  the  parties,  was  bad  on  special  demurrer  for  variance 
between  writ  and  declaration. 

3d.  Because  the  decision  is,  in  other  respects,  contrary  to  law, 

Wihon,  for  the  motion,  said,  Jane  Reid,  being  a  feme  covert  at  the  execution  of 
the  contract,  the  contract  itself  was  a  nullity.  He  cited  4  Taunt,  4(>S,  The 
contract  is  joint  and  several,  and  Jane  Reid  never  has  been  made  a  party  to  the 
sxiit.  The  plaintiffs  could  proceed  without*  noticing  her,  1  Hill  Rep.  229,  i-xq  m 
Sadler  vs.  McKee.  The  proceeding  in  attachment  is  only  to  bring  the  *- 
defendant  into  Court,  and  make  him  a  party ;  1  Tread.  Cons,  Rep,  83 ;  2  McC. 
27t),  Actil792;  2  Brev.  170;  as  to  process  against  partners,  Act  1823,  p.  34. 
Because  there  is  no  difference  between  the  original  writ  and  the  decraration,  in 
ordinarv  cases,  it  does  not  follow,  of  course,  that  it  should  not  be,  in  cases  of 
attachment.  Chittv  Plead,  52;  4  Burr,  21fc0;.  Chev,  233,  185;  1  B.  &  P.  49  ;  4 
Term,  094;  3  Hill.'215  ;  3  Johns,  530,  53'  ;  1  Bing,  68,  or  8  C,  L,  Rep.  253  and 
297  ;  17  ih.  309  ;  1  B.  &  P.  19  ;  10  C,  L.  Rep.  218  ;  Harp.  215 ;  leave  to  amend, 
xh.  400  ;  1  Peters,  46 ;  15  Johns,  483. 

Burt,  contra,  cited  Fitch  vs.  Heise,  Chev,  185,  and  said  that  case  was  conclusive. 

Curia,  per  Richardson,  J.  In  the  case  of  Fitch  vs.  Heise,  (Chev, 
Rep.  185,  j  this  Court  decided  that  where  two  joint(/;)  obligors  had  beea 
served  with  the  writ,  and  the  plaintiff  suggested  a  discontinuance  as  to 
one,  and  declared  against  the  other  alone,  the  declaration  was  bad  upon 
the  special  demurrer. 

The  Court  will  generally  give  leave  to  discontinue,  as  a  matter  of 
course,  yet  leave  must  be  first  obtained  by  the  usual  practice;  and  this 

(o)  S,  C.  Sup.  10,  (6)  Qu.  Joint  and  several.     An. 


570  COLUMBIA,    MAT,    1842.      VOL.  IL  [*347 

practice  has  good  reason.  The  names  of  men  often  influence  tlie  mind 
and  l)ias  a  trial  by  jnry;  and  therefore  Courts  guard  strictly  against  the 
introduction  of  any  but  the  exact  legal  parties -to  a  suit  a-t  law;  and 
whether  the  objection  be  to  the  withdrawal,  or  adding  a  party,  the  prac- 
tice is  t!ie  same,  and  has  the  same  reason.  The  relative  position  of  the 
litigants  is  not  to  be  altered  at  ])leasure  of  either  ]iarty.  In  the  case 
before  us,  the  plaintiffs  sued  William  and  Jane  Reid  upon  their  note, 
and  in  attachment.  The  defendants  gave  security,  dissolved  the  attach- 
ment, and  appeared  in  person.  The  case  then  stood  precisely  as  that  of 
Fifch  vs.  Heise.  Mrs.  Reid  was  in  Court.  Afterwards  the  plaintiffs 
assumed,  and  the  fact  may  have  been  so,  that  Jane  Reid  was  the  wife  of 
the  other  defendant,  and  proceeded  against  Wm.  Reid  as  if  she  had  not 
been  made  a  party;  but  they  should  have  first  ol}tained  the  leave  of  the 
Court  before  they  could  change  the  relative  position  of  the  parties  made 
*'-jJsl  '^'y  themselves.  *In  many  cases,  much  consequence  might  follow 
''-'  from  the  change.  Notwithstanding,  therefore,  some  cases  which 
might  indicate  a  different  practice  elsewhere,  we  would  adhere  to  our  own. 
The  demurrer  is  consequently  sustained,  but  the  plaintiffs  have  leave  to 
discontinue,  as  to  Jane  Reid,^«)  upon  paying  the  costs  of  the  demurrer, 
and  to  declare  against  the  other  defendant,  giving  a  rule  to  plead  de 
novo. 

O'Xeall,  Evans,  Earle  and  Butler,  JJ.,  concurred. 


William  Jacobs  vs.  McBee  &  Alexander. 

"Where  the  sealed  note  of  one  of  a  partnership  firm  is  taken  for  a  debt  due  by  the 
firm,  the  simple  contract  of  the  partnership  is  extinguished  by  the  sealed  note. 

Before  Evans,  J.,  at  Greenville,  Fall  Terra,  1841. 

This  was  a  case  wherein  the  plaintiff  attempted  to  charge  McBee,  as  a 
partner  with  Alexander,  in  the  purchase  of  grain.  It  appeared  from  the 
proof,  that  some  grain  had  been  delivered,  and  that  the  plaintiff  had 
accepted  and  taken  Alexander's  sealed  note  in  payment  for  the  debt. 
The  presiding  Judge  held,  and  charged  the  jury,  "  Tiiat  the  simple  eon- 
tract  of  the  partnership  was  extinguished  by  the  sealed  note  of  one  of  the 
partners." 

.  From  this  decision  the  plaintiff  appealed  for  a  new  trial,  upon  the  ground 
of  error  in  the  direction  of  liis  Jlonor  the  presiding  Judge,  that  the  sealed  note 
of  one  partner  is  an  e.xtinguishment  of  the  simple  contract  debt  of  the  firm. 
Yonnij,  Hinrij  and   Wardlmv,  for  the  motion. 
Virrij  and  Towns,  contra. 

♦3401       *Cvria,  per  Evans,  J.     There  is  no  doubt  about  the  general 
principle,  iliat  a  bond  or  other  contract  under  seal,  will  extin- 
guish  a  simple  contract;   or,  to    speak   more   accurately,    the  inferior 
Bccurity  is  merged  in  the  higher.     This  principle  applies  equally  where 

('0  See  3  Strob.  252;  1  McM.  212;  2  Hill,  422  ;  2  Rich.,  12.     An. 


*349]  JACOBS  vs.  m'bee  &  Alexander.  571 

the  bond  of  one  partner  is  given  for  a  partnersliip  debt,  as  to  other  cases. 
Bnt  it  is  supposed  tiic  case  of  Fleming,  7^>.s.s  <C'  Co.  vs.  Van  A.  LaicJton 
&  Co.  (Dudley,  3G1,)  has  established  a  different  rule.  In  that  case,  the 
copartnership  consisted  of  Lawhon  &  Cherry.  They  were  indel)ted  to 
the  [tlaintifl's  for  goods  sold.  Van  A.  Lawhon  gave  a  sealed  note,  in 
the  name  of  the  copartnership,  for  the  debt.  This  note  could  not  bind 
the  firm,  and  therefore  could  operate  only  as  the  single  bill  of  Yan  A. 
Lawhon ;  and  the  question  was,  whether  this  discharged  Cherry,  the  other 
partner  from  his  liability  on  the  open  account;  it  was  decided  that  it  did 
not.  But  it  will  be  found,  on  examining  that  case,  that  it  was  decided 
on  the  ground,  that  as  the  single  bill  delivered  to  the  plaintiffs  was  appa- 
rently, but  not  really,  the  obligation  of  both  parties,  tlie  idea  that  it  was 
the  deed  of  Lawhon  alone  was  n(jt  entertained  by  either  party,  and  no 
inference  could  be  drawn  that  the  plaintiffs  supposed  they  were  dis- 
charging Cherry  from  the  debt,  or  that  the  single  bill  would  have  that 
effect.  It  is  conceded  in  that  case,  that  if  the  plaintiffs  had  taken  the 
specialty  of  Lawhon  alone,  and  discharged  the  simple  contract  debt 
which  they  held  against  Lawhon  &  Cherry,  there  can  be  no  doubt  that 
the  account  would  have  been  extinguished.  That  that  case  was  not 
intended  to  overrule,  but  to  take  cases  of  that  description  out  of  the 
operation  of  the  general  rule,  is  manifest  by  what  is  said  by  my  brother 
Butler,  in  delivering  the  opinion  of  the  Court.  Referring  to  certain 
cases  decided  in  the  Supreme  Court  of  North  Carolina,  he  says  :  "  These 
cases  are  decided  on  the  principle,  that  the  creditor  who  takes  the  bond 
of  one  partner  in  the  name  of  the  firm,  does  so  in  I'eference  to  liability  of 
the  firm  at  the  time,  and  does  not  take  the  bond  as  exclusively  relying  on 
it  as  his  security  for  indemnity."  At  the  time  this  case  was  decided,  the 
valuable  reports  of  the  decisions  of  the  Supreme  Court  of  North  Caro- 
lina, by  Mr.  Devereux,  were  not  before  us  ;  we  had  only  an  abstract  of 
the  case.  Since  that  time,  *these  reports  have  been  added  to  our  i-^oka 
library,  and  on  inspecting  the  cases,  they  are  not  found  t(^  go  the  L 
whole  length  supposed  ;  but  I  see  no  reason  to  doubt  the  correctness  of 
the  decision  in  Fleming  tf-  Boss  vs.  Van  A.  Laivhon  £  Co.  The  single  bill 
in  that  case  was  clearly  intended  to  bind  Cherry.  The  plaintiffs  did  not 
intend  to  release  him,  and  when  he  repudiated  this  act  of  Lawhon,  there 
can  be  no  reason  assigned  why  he  should  not  have  been  still  liable  on  the 
simple  contract.  In  this  essential  particular,  that  case  differs  from  this. 
Here,  the  jilaintiffs  took  the  sing'e  bill  of  Alexander  alone.  The  case 
comes  clearly  within  the  general  and  recognized  principle,  and  is  in  no 
way  affected  by  the  exception  made  in  the  case  of  Fleming  <£•  Boss  vs. 
Van  A.  LaiL'hon  &  Co.     The  motion  is  dismissed. 

O'Neall  and  Butler,  JJ.,  concurred. 

Earle,  J.,  absent  at  the  argument. 

"■   See  1    Rich.  Ill ;   7  Rich.  395,  117.     Dissenting  opinion  of  Wardlaw,  J.,  in 
Union  Bank  vs.  IlotUjes  ^-  Smith,  11  Rich.     An. 


572  COLUMBIA,   MAT,    1842.      VOL.  H.  [*350 


Moore  &  Nesbit  vs.  Isaiah  Kelly. 

1.  A  levy  iipon  sufficient  personal  property  is  prima  facie  evidence  of  satisfaction. 

2.  Where  X'ei'sonal  property  had  been  levied  on  (ten  years  before,)  of  the 
defendant's,  and,  by  the  direction  of  the  plaintiffs,  the  sheriff  did  not  advertise 
and  sell,  the  plaintiffs  will  not  be  permitted  to  claim  money  arising  from  other 
sales  of  the  defendant's  property  under  junior  executions.  Their  lien  upon 
other  property  of  the  defendant  is  susj^ended  until  the  first  levy  is  disposed  of 
and  found  insufficient.  Neither  can  it  be  restored  by  their  own  act  in  releasing 
the  levy,  after  the  levy  and  sale  under  the  junior  execution. 

Before  Earle,  J.,  at  Laurens,  Spring  Terra,  1S42. 

This  was  a  rule  upon  the  Sheriff  of  Laurens,  for  not  paying  to  the 
plaintiffs  money  arising  from  the  sale  of  the  defendant's  property  under  a 
*9-i-|  junior  execution.  The  execution*  of  these  plaiutiifs  was  lodged 
-•  in  Si)nrtanburg,  in  December,  1828,  and  in  June,  1829,  was  levied 
by  the  Sheriff  there,  on  two  horses,  as  the  property  of  the  defendant. 
The  plaintiffs  directed  the  Sheriff  not  to  advertise  until  further  orders. 
lu  February,  1831,  the  defendant  paid  to  the  plaintiffs  thirty  dollars  of 
the  debt,  withiu  a  mere  trifle  of  the  amount  due,  and  about  the  same 
time  paid  part  of  the  costs.  No  further  proceedings  were  had  on  this 
execution.  In  1841,  judgment  was  obtained,  and  execution  lodged, 
against  the  defendant,  in  Laurens,  under  which  the  Sheriff  made  the 
money,  by  sale  of  the  defendant's  property,  and  these  plaintiffs,  in  Decem- 
ber, 1841,  released  the  levy  under  their  execution  in  S>3artanburg,  and 
claimed  the  proceeds  of  the  sale  in  Laureus.     Rule  discharged. 

From  the  foregoing  judgment  of  the  Court,  the   plaintiffs   appealed   and 
renewed  their  motion  in  the  appeal  Court. 

Sullivan,  for  the  motion. 

Irby,  contra. 

Curia,  per  Eai^le,  J.  It  is  very  well  settled  that  an  execution  once 
levied  u])cu  suflicient  personal  property,  is  to  be  regarded  as  satished 
until  the  levy  is  disposed  of  (fl)  Mazijck  &  Bellas.  C'otV,  2  Bail.  101.  In 
Clerk  vs  _  Withers,  Lord  Raymond,  1012,  Gould,  J.,  said,  "  the  defendant 
by  this  seizing  of  his  goods  in  execution,  is  discharged  of  the  judgment ;" 
and  Holt,  Ch.  J.,  said,  "the  defendant  may  plead  'levied  by^.  /a.'  in 
bar  to  an  action  on  the  judgment."  And  this  would  be  triie,  although 
the  sheriff  might  waste  the  goods  or  misapply  the  money.  If  the  action 
here  had  liceu  upon  the.  former  judgment  as  a  new  cause  of  action, 
the  ])laintiffs  would  doubtless  be  permitted  to  prove  that  the  horses 
levied  on  were  not  sold  by  the  sheriff,  but  were,  in  fact,  restored  to  the 
pos.se.ssioii  of  the  defendant  himself,  and  thus  rebut  the  presumption  of 
satisfaction  arising  from  the  levy.  Here  the  attempt  is  Ijy  rule  to  obtain 
funds  which  the  sheriff  has  made  by  the  sale  of  other  property,  upon  an 
cxeculioii  lodged  more  than  ten  years  after  that  of  the  plaintiffs.  By  the 
levy  of  tiieir  execution  on  two  horses  which  we  are  to  presume,  until  the 
*3521  |-''^"^'''>''y  Jipi'cars,  was  enough  to  pay  their  debt,  as  that  *with  the 
interest  and  costs,  did  not  much  exceed  thirty  dollars,  their  lien  upou 

(a)  See  May  vs.  Hancock,  MS.  Dec.  1829  ;  1  Rice's  Dig.  303,  {  47.     An. 


^352] 


BANK    VS.    SIMPSON-.  573 


other  property  of  the  defendant  was  suspended  until  the  horses  were  dis- 
posed of  and  found  insullicient.  Nor  could  it  be  restored  by  their  owq 
act  in  releasing  the  levy,  after  the  levy  and  sale  under  the  junior  execu- 
tion. The  plaintiffs  suspended  the  sale,  by  directing  the  sherilf  not  to 
advertise  ;  but  they  still  retained  their  hold  upon  the  property  under  the 
levy,  and  if  their  execution  is  not  satisfied,  may  proceed  to  retake  it,  if 
they  can.     Motion  refused. 

Richardson,  O'Neall,  and  Evans,  JJ.,  concurred. 


The  President  and  Directors  of  the  Bank  of  South  Carolina  vs. 

Oliver  Simpson. 

Where  a  party  (defendant)  is  temporarily  absent  from  tlie  State,  and  a  copy  writ, 
with  a  notice  endorsed  thereon,  is  left  at  his  residence  during  his  absence,  it  was 
held  to  be  a  good  and  valid  service  of  such  writ. 

Before  Richardson,  J.,  at  Edgefield,  Spring  Term,  1842. 

This  was  an  application  to  set  aside  the  service  of  a  writ.  Motion 
granted,  and  service  ordered  to  be  set  aside,  upon  affidavits  of  the  absence 
of  the  defendant  from  the  State  until  after  return  day.  Defendant  stated 
in  his  affidavit,  "that  on  the  15th  of  February,  1842,  he  left  his  resi- 
dence, in  Edgefield,  on  a  visit  to  North  Carolina,  and  remained  in  North 
Carolina  till  the  16th  of  March,  1842,  when  he  again  entered  the  State, 
and  reached  home  on  the  20th  of  March,  and  on  the  22d  was  handed  the 
copy  writ  by  a  servant.  Defendant  also  states  that  he  understands  this 
action  is  brought  against  him  as  bail  of  Wiley  Milton,  *vvho  left  ti^j.^^q 
the  State  insolvent,  and  now  resides  in  Dallas  county,  Alabama,  •- 
and  that  he  has  not  had  time  to  procure  and  surrender  said  Milton  in  his 
own  discharge.  The  defendant  states  that  he  has  been  surprised,  and 
conceives  himself  in  danger  of  being  injured.  Defendant  also  states  that 
he  did  not  leave  home  with  the  view  of  avoiding  legal  process,  and  that 
he  has  no  white  member  of  his  family."  Defendant  afterwards  made 
another  affidavit,  in  which  he  stated,  "that  he  meant  to  say  in  his  first 
affidavit  that  he  had  no  wife  or  children  residing  ivith  him,  norany  other 
while  person  having  authority  to  attend  to  any  such  matters  as  his 
affidavit  alluded  to.''''  Defendant  admitted  in  the  second  affidavit,  that 
there  were  three  white  persons  about  his  house  but  not  in  his  employment, 

5.  B.  Mays,  deputy  sheriff,  stated,  by  Avay  of  af&ilavit,  that  on  the  3d  of  Jlarch, 
1842,  he  left  a  copy  of  this  writ  at  the  house  of  the  defendant,  and  that  at  the 
time  there  were  three  white  persons  present,  viz.  :  Belk,  O'llallowell  and  Garrett, 
and  informed  them  that  he  had  left  the  writ,  and  that  soon  after  he  left  the 
house  he  received  a  note  from  Garrett,  by  the  hands  of  O'Hallowell,  desiring  to 
know  something  about  the  writ  in  this  case.  He  states  that  Wiley  Milton  lived 
within  three  or  four  miles  of  defendant  for  several  years  before  his  removal. 

R.  R.  Hunter  swore  that  O'Hallowell  had  been  living  for  the  last  three  or  four 
months  at  the  defendant's,  and  that  since  Wiley  Milton  had  given  the  bail  bond, 
till  liis  removal,  he  had  lived  within  a  short  distance  of  Oliver  Simpson. 

The  plaintiff  appealed,  and  moved  to  reverse  the  order  setting  aside  the 
service  of  the  writ,  on  the  following  grounds  : 


574  COLUMBIA,   MAT,    1842.      VOL.  II.  [*353 

1.  Because  service  by  copy,  left  at  the  notorious  jilace  of  residence  of  the 
defendant,  is  good  and  legal  service. 

2.  Because"theca?ual  absence  from  tlie  State,  of  the  defendant  on  return  day, 
is  not  a  ground  for  setting- aside  the  service  of  the  writ,  inasmuch  as  he  returned 
immediately  thereafter,  and  before  the  first  day  of  the  term, 

3.  Because  the  service  of  the  writ  is  legal. 

„„. ,,       *Burt,  for  the  motion,  cited  3  Statutes  at  Large,  118  ;  1  McCord,  566  ;  3 
'^^^-'  ih.  84. 

Carroll,  contra,  cited  2  Statutes  at  Large,  611-13  ;  Treamble  of  the  Act  of  1713; 
Act  of  1720,  3  Statutes  at  Large,  118  ;  Act  of  1791;  2McGord,  2j0,  Williamson  vs. 
Cummiti.(a) 

Curia,  per  Butler,  J.  There  seems  to  be  no  doubt  that  the  writ 
was  left  at  the  defendant's  residence,  in  the  manner  prescribed  by  the  Act 
of  1737  \'h)  that  is,  it  was  put  in  an  obvious  part  of  the  house,  by  the 
deputy  sheriff,  with  a  notice  to  a  white  man  residing  there  in  the  absence 
of  the  defendant,  but  not  present  at  the  time  that  it  had  been  so  left ;  and 
it  is  e(pial]y  certain  that  the  defendant  got  possession  of  the  writ  before 
Court,  and  wlieu  he  had  an  opportunity  to  enter  his  appearance.  The 
question  arises  on  the  construction  of  the  Act  of  1720, (c)  whether  the  de- 
fendant falls  within  that  description  of  persons  who  may  be  served  with 
process  in  their  absence,  by  having  a  copy  left  at  their  residence.  That 
Act  provides,  "  that  in  case  the  defendant  absconds,  or  absents  himself  so 
that  he  cannot  be  found,  the  sheriff  may  serve  him  by  leaving  a  true  copy 
of  such  writ  at  the  dwelling  house,  or  the  most  usual  and  notorious  place 
of  the  residence  or  habitation  of  the  defendant,  with  a  proviso  that  the 
Act  shall  not  be  construed  or  extended  to  any  persons  gone  off  from  this 
settlement,  and  not  being  actually  resident  in  the  same  when  such  copy 
shall  be  left,"  &e.  The  proviso  shows  that  all  persons  retaining  resi- 
dences in  the  State  are  liable  to  the  provisions  of  the  Act.  Neither  the 
duration  or  place  of  absence  is  limited  or  designated,  nor  could  they  well 
be.  It  has,  however,  been  repeatedly  decided,  that  the  fact  of  a  defend- 
ant being  out  of  the  limits  of  the  State,  at  the  time  of  such  service,  will 
not  be  sufilcient  to  set  it  aside.  In  the  case  of  Frean  ads.  Crook- 
shank,  3  McCord,  85,  the  defendant  was  in  New  York  at  the  time  the 
coi)y  was  left ;  and  in  another  case,  1  McCord,  666,  the  defendant  was  ia 
Georgia.  Yet  in  both  these  cases  the  service  was  held  good  ;  and  if  it 
had  ap|»eared  that  the  defendants  did  not  receive  the  copy  until  after 
return-day,  tlie  case  before  the  Court  could  not  be  distinguished  from  them. 
355*1  '^'  '*'  ^^^^  ^  circumstance  which  *did  not  seem  to  have  been  re- 
garded important,  as  it  is  not  adverted  to:  nor  do  I  think  it  caa 
make  any  dilTercuce,  for,' whether  absent  from  home  in  the  State  or  out 
of  it,  the  noiicc,  constructive  notice,  would  be  the  same.  Territorial 
l)Osition  cannot  change  the  nature  of  the  notice.  It  is  true,  a  sheriff  can- 
not serve  a  party  personally  by  delivering  process  to  him  in  another 
State  or  district ;  for  lie  must  act  within  his  own  jurisdiction,  to  make 
his  acts  valid  ;  and  when  witliin  his  own  district,  he  leaves  process  at  a 
defendant's  liouse  during  his  absence,  but  with  an  intention  to  return,  it 
is  made  as  good  as  i)crsoiud  service  by  the  provisions  of  the  above  Act, 
the  residence  being  substituted  for  the  person.     And  if  it  were  not  so, 

(")  7  Stat.  2(13,  ?  C.     An.  (h)  7  Stat.  190,  g  5.     Ati. 

(t)  3  Stat.  118.     An. 


*355]  BANKS   VS.   SEARLES.  575 

plaintiffs  would  be  subjected  to  great  delay,  and  in  some  instances  their 
cause  of  action  niis^ht  be  entirely  defeated.  There  can  Ijc  little  danger  in 
holding  that  in  all  cases  of  temporary  absence,  a  defendant  may  be  served 
by  copy  left  at  his  house,  whilst  the  contrary  doctrine  would  operate 
unequally,  and  interfere  with  valual)le  rights  ;  for  \n  cases  of  hardship 
and  injustice,  as  is  suggested  by  Judge  Johnson  in  the  case  quoted,  the 
court  can  give  the  party  relief,  by  either  letting  him  enter  an  appearance 
before  judgment,  or  opening  the  judgment  to  allow  him  an  opportunity 
to  nuike  a  defence.  The  defendant  in  tlie  case  before  the  court,  had  a 
right  to  enter  his  ai)pearance  without  leave  of  the  court,  Or  consulting  the 
opposite  ])arty.  The  diihculty  in  which  he  finds  himself  involved,  arises 
out  of  his  relation  to  Milton,  and  not  out  of  any  unfairness  or  irregularity 
in  the  service  of  the  writ.  He  cannot  well  complain  of  either  ignorance 
or  surprise.  We  think  the  circuit  decision  should  be  set  aside.  Motioa 
granted. 

O'Neall,  Evans  and  Earle,  JJ.,  concurred. 

See  11  Rich.  20.     An. 


Jacob  B.  Banks  vh.  Pleasant  Searles.  [*356 

A  note  giron  in  part  as  compensation,  and  partly  to  compromise  a  prosecution  for 
an  assault  and  battery,  is  not  void,  the  consideration  being  adequate  to  sustain 
the  action. 

Before  0'iS"EALL,  J.,  at  Edgefield,  January,  Extra  Term,  1842. 

This  was  an  action  of  assumpsit  on  a  note  of  hand.  The  defendant 
relied  on  the  defence  that  it  was  given  to  compound  a  criminal  prosecu- 
tion. It  appeared  that  the  plaintiff  had  been  badly  beaten  by  a  man 
named  Yancey  Freeman.  The  defendant,  with  others,  was  charged  with 
being  concerned  in  the  affray.  Indeed,  the  defendant  was  sui)posed  to 
be  the  agit^itor  of  the  whole  affair.  The  plaintiff  procured  a  warrant  to 
be  issued  against  all  supposed  to  be  concerned,  including  the  defendant, 
and  was  about  suing  out  a  writ  in  trespass,  when,  at  the  instance  of  the 
defendant,  the  whole  matter  was  compromised,  and  the  defendant  gave  his 
note  for  $200.  The  defendant  was  allowed  to  go  into  an  investigation 
of  the  fight,  and  to  show,  if  he  could,  that  he  was  wholly  unconnected 
with  it.  In  this,  however,  he  certainly  failed,  for  the  proof  was  abundant 
to  show,  that  if  he  did  not  cause  the  assault  and  battery  to  be  committed, 
he  was  at  least  a  party  to  it.  Tlie  jury  were  told,  if  the  note  was  given 
to  compensate  the  plaintiff  for  the  injury  he  received,  and  the  defendant 
was  concerned  in  the  assault  and  battery,  that  notwithstanding  it  might 
have  been  also  agreed  that  the  prosecution  should  stop,  yet  the  note 
might  be  recovered.  If  the  defendant  was  wholly  unconnected  with  the 
assault  and  battery,  and  the  note  was  given  to  compromise  the  prosecu- 
tion alone,  then  it  could  not  be  recovered. 

The  jury  found  for  the  plaintiff,  and  the  defendant  appealed  on  the  annexed 
grounds : 

1.  That  the  note  in  this  case,  having  been  given  to  conipruuiise  a  criniiual 
prosecution,  was  void,  fur  want  of  cuusideratiou. 


576  COLUMBIA,    MAY,    1842.      VOL.  TL  [*356 

2.  Because  the  note,  in  any  point  of  view,  was  void,  as  part  of  ita  considera- 
tion was  the  compromise  of  the  criminal  prosecution. 

„„.-,        "GrIJfin,  for  the  motion,  cited  2  Hill,  625  ;  1  Bail.  588;  Chev.  178,  Scott 
"^^'J  vs.  Gillman;  3  Taunt.  226;   Chitty  on  Bills,  98,  in  a   note;  Bail,  on  Bills, 
563  ;  Chitty  on  Contr.  51,  53(3 ;  15  Pick. "529  ;   7  Term,  197. 

Bni-t,  contra,  contended  that  the  consideration  of  the  note  was  sufficient.  He 
said  an  indictment  for  an  assault  and  battery  could  scarcely  be  considered  a 
criminal  prosecution.  He  cited  2  Hill,  (525,  and  relied  upon  this  case  as  full 
authority. 

Ci/r?a,  per  O'Xeall,  J.  In  this  case  we  concur  in  the  instructions 
given  by  the  judge  below  to  the  jury.  There  is  in  every  assault  and 
battery  a  public  offence  and  a  civil  injury.  The  compensation  of  the 
latter  has  always  been  encourag-ed  by  the  imposition  of  a  much  less  pun- 
ishment, where  it  has  been  made  than  would  have  been  otherwise  done. 
Indeed,  it  is  not  regarded  as  of  any  great  importance  to  the  public,  that 
common  assaults  and  batteries  should  be  severely  punished.  It  is  gener- 
ally supposed,  if  the  parties  be  reconciled,  and  compensation  to  the  party 
injured  is  made,  that  all  the  ends  of  justice  have  been  answered.  If, 
therefore,  the  defendant  was  liable  to  answer  for  the  injury  which  the 
plaintifif  sustained,  he  will  be  regarded  as  making  his  note  the  measure 
of  damages  ;  and  hence  it  could  not  be  assailed  as  in  the  whole  or  in  part 
resting  on  an  illegal  consideration.  The  jury  have  found  that  the  de- 
fendant was  answerable  for  the  assault  and  battery,  and  according  to  the 
rule  stated,  his  note  must  be  sustained.  The  three  cases  previously 
decided  in  this  State  on  this  subject,  I  regard  as  perfectly  reconcilable 
with  each  other,  and  as  sustaining  the  rule  laid  down  in  this  case.  In 
Corley  vs  WiUinms,  1  Bail.  588,  the  indictment  was  against  Kirksey,  for 
an  assaidt  and  battery.  The  defendants  were  his  securities ;  he  absconded. 
To  compromise  the  matter,  and  stop  the  prosecution,  they  gave  their  notes 
for  twenty-five  dollars  each,  and  the  magistrate  gave  up  their  recognizance. 
It  was  held  that  the  whole  consideration  of  the  notes  then  was  to  stop  the 
prosecution,  and  therefore  illegal.  This  was  the  only  view  which  could 
be  taken  of  that  case,  for  the  defendants  were  in  no  shape  liable  for  the 
civil  injury  ;  they  were  alone  connected  with  the  criminal  i)rosecution.  So 
*'S5S1  *'"  '^^''"''■''^  ^s.  Hyhert,  Chev.  177,  the  note  was  given  by  a  third 
^  person  to  a  mother,  for  an  assault  and  battery  on  her  child,  where 
there  was  no  allegation  that  the  battery  was  so  enormous  as  to  deprive 
her  of  his  services,  and  where  it  was  given  to  prevent  a  prosecution,  it 
was  lield  that  the  note  could  not  be  recovered,  because  the  mother  had 
no  right  of  action  for  such  an  assault  and  battery  on  her  child.  This 
was  jilacing  the  defendant's  exemption  from  liability  on  the  ground  that 
there  was  no  consideration,  not  that  it  was  illegal.  In  ^Mathiaon  & 
Kiiujshnj  vs.  Hants,  2  Hill,  G25,  the  defence  was,  that  the  note  was 
given  in  satisfaction  of  an  assault  and  battery  committed  by  the  defen- 
dant ;  it  was  held  that  it  was  a  good  consideration.  This  case  settled,  as 
I  conceive,  the  rule  that  where  the  defendant  is  liable  for  the  assault  and 
battery,  a  note  given  by  him  to  settle  it  is  founded  on  a  legal  considera- 
tion.    The  motion  is  dismissed. 

IlicuARDsoN,  Evans,  Eaklk,  and  Butler,  JJ,,  concurred. 

See  Hudson  vs.  Brown  ^  Smith,  11  Rich.     An. 


'359]  MULDROW    VS.    BACOT.  577 


*nUGH   MULDROW,    ASSIGNEE,  VS.  N.    A.    BaCOT  ET    AL.      [*359 

1.  Every  prisoner  in  execution  is  entitled  to  the  prison  bounds,  on  his  giving  to 
the  sheriff  security  to  remain  within  them,  and  to  render  a  schedule  on  oath 
witliin  forty  days  ;  provided,  if  he  intends  to  take  the  benelit  of  the  insolvent 
del)tors'  Act,  passed  in  1759,  he  or  she  has  not  been  in  actual  confinement 
forty  days. 

1.  Whenever  the  prisoner  intends  to  take  the  benefit  of  either  of  the  said  Acts, 
if  he  has  the  privilege  of  the  bounds,  he  must,  according  to  his  bond,  render  a 
scliedule  on  oath. 

3.  Where  the  prisoner  renders  in  a  schedule  on  oath,  of  his  whole  estate,  he  has 
the  right  to  apply  for  a  discharge,  under  either  of  the  said  Acts.  If  he  applies 
for  a  discharge  under  the  Act  of  17f^8,  he  need  file  no  jjetition,  but  the  Clerk,  is 
required,  witliin  ten  days  after  the  receipt  of  the  schedule,  to  give  notice  that 
the  prisoner  will  be  discharged,  and  tlie  schedule  assigned,  unless  satisfactory 
cause  to  the  contrary  be  shown  before  one  or  more  of  the  Judges  of  the  Court 
from  whence  tlie  process  originates,  or  one  of  the  Commissioners  of  special  bail. 

4.  It  is  the  duty  of  tlie  Clerk  to  give  the  notice,  and  it  must  be  done  witliin  ten 
days  after  the  filing  of  the  schedule  ;  but  the  notice  must  be  given  on  the 
application  of  the  prisoner.  He  must  elect,  and  not  the  Clerk.  The  insolvent 
debtors'  Act  requires  the  application  to  be  made  by  petition ;  the  other  Acts 
require  no  petition. 

Before  Wardlaw,  J.,  Darlington,  Spring  Term,  1842,  who  reports  the 

facts  as  follows  : 

"Debt  upon  prison  bounds'  bond,  which,  besides  the  usual  conditions, 
contained  also  the  following  words  :  "  and  shall  assign  his  schedule, 
according  to  law,"  which  were  intended  to  make  it  conformable  to  the 
requisition  of  the  Act  of  1841, (o)  which  extends  the  bounds  of  prisons. 
Breach  alleged,  that  the  defendant  had  not  made  an  assignment  of  his 
property  at  the  expiration  of  the  tirap  allowed  by  the  prison  bounds'  Act. 

The  debtor  was  arrested  under  ca.  sa.,  and  soon  afterwards,  (viz.  : 
29th  January,  1842,)  filed  in  the  clerk's  office  a  schedule  of  his  whole 
estate,  accompanied  by  his  oath  of  its  truth.  The  schedule  contained  no 
other  direct  intimation  of  its  purpose.  The  clerk,  without  remembering 
any  particular  directions  given  to  him,  said  that  he  posted  a  ten  day 
rule  ;  but  the  rule  not  having  been  produced,  nor  accounted  for,  objec- 
tion to  proof  of  its  contents  was  made  and  sustained.  No  petition  was 
filed,  no  application  for  discharge  was  made,  and  no  assignment  was 
ever  heard  of. 

The  defendants  contended  that  the  condition  of  the  bond  was  not  such 
as  tlie  Act  of  1841  requires;  and  if  it  were,  *that  the  debtor  r^opo 
might  still  file  his  petition  under  the  insolvent  debtor's  Act  as  the  ^ 
schedule  was  as  suitable  to  that  Act  as  to  the  prison  bounds'  Act ;  and 
that,  until  the  expiration  of  the  notice  which  he  would  be  required  to 
give,  nnder  the  insolvent  debtors'  Act,  the  condition  of  the  bond  would 
not  be  broken  for  want  of  an  assignment.  I  held  that  the  words  before 
recited,  although  not  apt,  might  be  considered  as  a  substantial  com- 
pliance with  the  Act  of  1841,  so  far  as  regards  the  assignment  required, 
and  that  the  schedule  showed  the  debtor's  purpose  to  resort  to  the 
prison  bounds'  Act,  and  not  the  insolvent  debtors'  Act,  because  it  was 
sworn  to,  because  it  was  unaccompanied  by  a  petition,  and  because  the 

(«)  11  Stat.  153.     An. 

Vol.  I.— 38 


578  COLUMBIA,   MAT,    1842.      VOL.  II.  [*360 

clerk  was  left  to  give  the  nsual  notice.  And  I  held,  that  after  the  forty 
days  mentioned  in  the  bond,  the  debtor  could  not  commence  his  resort 
to  the  insolvent  debtors'  Act. 

Under  my  directions,  the  jury  found  for  the  plaintiffs  the  balance  due 
on  the  ca.  sa.,  $35  42,  and  the  defendants  have  given  notice  of  an  appeal 
on  the  annexed  grounds. 

After  the  trial,  the  debtor  presented  his  petition,  showing  that  he  was 
under  arrest  by  virtue  of  the  ca.  6'a.,  before  mentioned,  and  various  other 
writs  of  ca.  sa.  ;  that  he  had  filed  a  schedule,  and  was  desirious  of  the 
benefit  of  the  insolvent  debtors'  Act,  praying  a  ninety  day  rule  to  be 
published,  &:c.  Conceiving  that  the  validity  of  the  proceeding  would  be 
hereafter  inquired  into,  and  would  not  be  effected  by  an  ex  parte  motion 
and  that  the  debtor  should  not  be  hindered  in  his  resort  to  a  remedial 
statute,  by  any  mistake  which  I  may  have  made,  I  directed  the  clerk  to 
file  the  petition,  and  to  give  a  copy  of  the  rule  for  publication." 

GROUNDS   OF   APPEAL. 

1st.  That  his  Honor  erred  in  charging  the  jury  that  a  debtor  who  intends  to 
take  the  benefit  of  the  insolvent  debtors'  Act,  is  obliged  to  file  his  petition  for 
that  purpose  with  the  clerk  of  the  Court,  together  with  his  schedule,  within 
forty  days  from  the  date  of  the  bond  which  he  has  given  for  the  prison  bounds. 

2d.  Because  that  part  of  the  condition  of  the  bond  containing  these  words, 
"and  shall  assign  his  said  schedule  according  to  law,"  svas  void,  inasmuch  as  it 
^oz-i-i  was  not  in  *eonformity  to  the  requisition  of  the  Act  of  1841,  and  his 
J  Honor  should  have  so  charged  the  jury. 

3d.  Because  there  was  no  breach  of  the  conditions  of  the  bond. 

Law,  for  the  motion,  cited  the  Act  of  1841,  p.  153,  extending  the  prison  bounds ; 
also  Powell  on  Contracts,  395,  396,  397. 

Sims,  contra,  on  the  first  ground,  cited  A.  A.  1759;  (a)  2  Brev,  Dig.  148-9;  A, 
A.  1788,  sec.  3,  4.  86  ;(&)  2  Brev.  Dig.  158.  As  to  the  form  of  the  bond,  the 
Coui-t  will  look  to  a  substantial  rather  than  a  literal  compliance  with  the  require- 
ments of  the  statute.  Juri  sunt  in  litera;  sunt  in  cortice.  Cited,  also,  A.  A.  1841, 
153-4 ;  Treasurer  vs.  Bates,  2  Bail.  Rep.  362 ;  Anderson  vs.  Foster,  2  Bail.  Rep.  501. 

Dargan,  same  side,  said  the  absence  of  a  petition  at  the  time  of  filiAg  the 
schedule,  is  proof  that  the  defendant  intended  to  take  the  benefit  of  the  Act  of 
1788.  Another  fact  of  the  defendant's  intention  to  take  the  benefit  of  the  Act  of 
1788,  and  not  that  of  1759,  is  the  fact  that  ito  oath  or  affirmation  is  required  under 
the  Act  of  '59.     Cited  2  McC.  108,  Treas.  vs.  Stephens;  1  Bail.  111. 

^[oses,  in  reply,  contended  that  there  was  nothing  in  this  case  that  prevented 
the  defendant  from  taking  the  benefit  of  the  ninety  day  Act,  at  the  expiration  of 
ninety  days  from  the  filing  of  the  petition.  Cited  Act  1788,  Brev.  Dig.  158,  79 
sec.  Tliere  is  no  difference  whether  the  defendant  applies  for  discharge  under  the 
ten  day  or  ninety  d;iy  Act ;  if  he  intends  taking  the  prison  rules,  he  must  swear 
and  file  liis  hi  hedule  within  forty  days  from  the  date  of  his  bond.  He  is  not 
obliged  to  fil<;  liis  petition  within  forty  days.  Cited  Act  1841 ;  3  Washington  Rep. 
10;  2  McC.  293. 

Cvrin,  per  Evans,  J.  It  must  be  borne  in  mind  that  the  defendant 
Bacot  was  a  prisoner  in  execution  on  civil  process,  and  all  the  obser- 
vations, which  1  propose  to  make  on  the  construction  of  the  Acts  of  the 
Legislature  applicable  to  this  case,  will  be  restricted  to  such  persons. 
By  the  3d  section  of  the  Act  of  1788,  P.  L.  456,  commonly  called  tlie 

(a)  5  Stat.  78.     An.  (?,)  4  gtat.  86.     An. 


*361]  MULDROW    VS.    BACOT.  579 

prison  bonnrls'  Act,  it  is  provided  that  all  priaoner^  in  execution 
*on  any  civil  p?'ocess  shall  be  entitled  to  the  benefit  of  the  rules,  r-^oc^ 
bounds  and  limits,  provided  he  or  she  shall,  within  forty  days  ■- 
after  being;  taken  in  execution,  give  satisfactory  security  to  the  sheriff 
that  he  or  she  will  not  only  remain  within  the  said  rules,  bounds  or  limits, 
but  will  also,  within  forty  days,  render  to  the  clerk  a  schedule  on  oath  or 
atlinnation,  of  his  or  her  whole  estate,  or  so  much  thereof  as  will  pay  or 
satisfy  the  sura  due  on  the  execution,  by  force  of  which,  he  or  she  shall 
be  confined. 

By  the  4th  section,  the  clerk  is  required  to  give  notice,  within  ten 
days  after  the  receipt  of  the  schedule,  tiiat  the  prisoner  will  be  lilxsrated 
and  the  property  assigned,  unless  satisfactory  cause  to  the  contrary  is 
shown.  By  the  bth  section  of  tlie  same  Act,  if  any  person  conOned  on 
execution  (unless  such  person  has  been  in  actual  confinement  above  forty 
days)  be  determined  to  deliver  up  all  liis  or  her  estate  and  effects,  and  to 
take  the  benefit  of  the  Act  for  the  relief  of  insolvent  debtors,  passed  the 
7th  day  of  April,  1795,  he  or  she  may  do  so,  although  he  or  she  may 
liave  given  bail  to  the  action,  or  not  surrendered  him  or  herself  within 
ten  days  after  arrest,  or  not  presented  a  petition  within  forty  days  after 
confinement,  or  not  been  actually  confined  three  months,  provided  he  or 
she  shall  comply  with  the  other  requisites  of  the  said  Act.  By  the  1st 
section  of  the  Act  of  1759,  P.  L.,  247,  if  any  person  be  sued,  arrested, 
or  im|)leaded,  for  any  debt,  duty,  or  demand,  and  shall  be  minded  to 
surrender  all  his  estate  towards  the  satisfaction  of  the  debts  wherewith 
he  stands  charged,  it  shall  be  lawful  for  such  person,  within  one  month 
after  he  or  she  shall  be  taken  in  custody,  to  exhibit  a  petition  to  any 
court  of  law  whence  the  process  issued  against  him,  certifying  the  causes 
of  his  imprisonment,  together  with  an  account  of  his  or  her  whole  estate, 
upon  which  the  court  shall  cause  the  petitioner  to  be  brought  before 
them,  and  also  the  creditor,  &c.,  to  be  summoned  by  public  notice  to  be 
given  three  months,  &c. 

By  the  Act  of  1840,(a)  any  prisoner  in  execution  on  final  process,  who 
shall  refuse  for  ten  days  to  make  an  assignment  of  the  estate  and  effects 
embraced  in  his  schedule  according  to  the  order  of  the  Judge,  &c.,  he 
shall  no  longer  be  entitled  to  the  bounds.  By  the  Act  of  1841,  every 
*prisoncr  in  execution,  who  shall  take  the  benefit  of  the  rules  shall  r^q^q 
be  obliged  not  only  to  render  the  schedule  now  required,  but  ^ 
shall  also,  at  the  expiration  of  the  notice  prescribed  under  the  insolvent 
debtors'  and  prison  bounds'  Act,  respectively,  assign  and  surrender,  as 
far  as  in  his  power,  the  property  mentioned  in  the  said  schedule,  and  in 
default  of  such  assignment  and  surrender,  the  bond  for  the  rules  shall  be 
forfeited,  &e, 

I  have  thus  embodied,  in  this  opinion,  all  the  various  Acta  of  the  Legis- 
lature which  apply  to  this  case,  in  order  that  the  provisions  of  them  may 
be  collected  together,  and  the  meaning  more  easily  ascertained  From 
a  review  of  them,  I  think  the  following  conclusions  may  be  drawn. 

1.  That  every  jvisfoncr  in  execution  is  entitled  to  the  bounds,  on  his 
giving  to  the  Sheriff  security  to  remain  within  them,  and  to  render  a  sche- 
dule on  oath  within  forty  days;  provided,  if  he  intends  to  take  the  bene- 

(a)  11  Stat.  121.     An. 


580  COLUMBIA,    MAY,    1842.      VOL.  IL  [*363 

fit  of  the  Act  for  the  benefit  of  insolvent  debtors,  passed  in  1759,  he  or 
she  hiis  not  been  in  actual  confinement  forty  days. 

2.  Whenever  the  prisoner  intends  to  take  the  benefit  of  either  of  the 
said  Acts,  if  he  has  the  privilep^e  of  the  hounds,  he  ranst,  accordin.o;  to  his 
bond,  render  a  schednle  on  oath.  The  cireunistance,  therefore,  that 
Bacot,  in  this  case,  had  rendered  a  schedule  on  oath,  affords  no  criterion 
whereby  we  can  determine  under  what  Act  he  intended  to  api)ly  for  his 
discharire,  as  seems  to  have  been  supposed  by  the  circuit  Judjre. 

3.  Where  the  prisoner  renders  in  a  schedule  on  oath  of  his  whole 
estate,  he  has  the  right  to  apply  for  a  discharge  under  either  of  the  said 
Acts.  If  he  applies  for  a  discharge  under  the  Act  of  1788,  l)e  need  file 
no  petition,  but  the  clerk  is  required,  within  ten  days  after  the  receipt  of 
the  schedule,  to  give  notice  that  the  prisoner  will  be  discharged,  and 
the  schedule  assigned,  unless  satisfactory  cause  to  the  contrary  be  shown 
before  one  or  more  of  the  Judges  of  the  court  from  whence  the  process  ori- 
ginates, or  one  of  the  Commissioners  of  Sjiecial  bail.  In  this  case  no  peti- 
tion was  filed,  and  therefore,  if  the  prisoner  made  any  application  for  dis- 
charge, it  was  not  under  the  insolvent  debtors'  Act,  which  requires  the 
application  to  be  made  by  petition.  The  Act  requires  the  clerk,  within 
i^ont  I  ten  days  after  the  filing  *the  schedule,  to  give  notice,  but  then 

-"  that  must  mean  he  shall  give  notice  on  the  application  of  the  pri- 
soner, for  if  the  clerk  is  bound  in  all  cases  to  give  the  notice,  whether 
a))plied  for  not,  then  the  clerk  has  the  election,  and  not  the  prisoner, 
whether  he  shall  be  discharged  under  the  one  Act  or  the  other.  In  this 
case  it  is  contended  Bacot's  bond  is  forfeited,  because  he  did  not  assign 
his  schedule  at  the  cxi)iration  of  the  ten  day  rule  posted  by  the  clerk.  If 
this  rule  had  been  posted  in  pursuance  of  the  application  of  the  prisoner, 
then  I  think  he  had  made  his  election  to  apply  for  a  discharge  under  the 
Act  of  1788,  and  it  may  be  was  bound  to  assign  at  the  expiration  of  the 
notice,  in  order  to  save  his  bond.  But  the  evideiice  on  this  point  is  by  no 
means  satisfactory,  and  was  not  submitted  to  the  jury.  The  opinion  of 
the  circuit  Judge  seems,  from  the  report,  to  have  turned  on  the  fact,  that 
the  schedule  was  sworn  to,  as  a  sufficient  evidence  of  the  election  of  the 
prisoner.  In  this  I  think  he  was  clearly  in  error,  and  that  the  case  maybe 
submitted  to  the  jury  on  the  other  point,  a  new  trial  must  be  ordered. 

Tlie  Court  is  of  opinion,  with  the  circuit  Judge,  that  the  bond  was 
suflicient  to  bind  the  parties,  so  far  as  it  was  attempted  to  charge  them 
in  this  case. 

Motion  granted. 

Ejcilvudson,  O'Xeall,  Earle  and  Butler,  JJ.,  concurred. 

See  Brevard  vs.   Wijlie,  1  Strob.  41.     An. 


'365]  LITTLEJOHN    VS.    JONES.  581 


*JOHN    LlTTLEJOIIN    r.S.   L.   D.   JuNEP.  ,['365 

The  owner  of  a  private  ferry  may  so  use  it  (althou,2;h  on  a  road  not  opened  by 
public  authority,  or  repaired  by  public  labor,)  as  to  subject  himself  to  the 
liability  of  a  common  carrier,  if  he  undertakes  for  hire,  to  convey  across  the 
river  all  persons  indifferently,  with  their  carriages  and  goods.  But  this  is  a 
question  of  fact,  to  be  determined  by  a  jury,  and  when  once  passed  on  by  a 
jury,  will  not  be  disturbed,  unless  for  misdirectiou  in  the  Judge  who  heard  the 
cause. 

Before  Earle,  J.,  at  Laurens,  Spring  Term,  1842. 

This  was  an  action  of  trespass  on  the  case,  arising  out  of  the  following 
state  of  facts : 

Tiie  defendant,  living  on  the  Enoree,  has  mills  on  the  river,  and  owns 
the  hind  on  both  side.  He  has  a  ferry  there  for  his  own  convenience, 
used  as  an  appendage  to  tlie  mills  and  plantation.  Such  a  ferry  has  been 
kept  there  by  those  who  have  owned  the  property  for  thirty  years.  A 
road  leads  to  the  ferry  and  mills  from  the  main  market  road,  on  both 
sides  of  the  river,  which  was  not  established  by  public  authority,  and 
has  never  been  considered  a  public  road,  nor  worked  on  as  such. 

On  the  1st  of  June,  1840,  the  plaintiff's  wagon,  with  others  in  com- 
pany, returning  from  Charleston,  laden  with  goods,  turned  off  the  market 
road,  on  which  the  ferry  wsis  broken  up  by  the  freshet,  to  cross  at  the 
defendant's.  Whilst  the  plaintiff's  wagon  was  in  the  act  of  being  driven 
into  the  flat,  the  chain  which  confined  it  to  the  bank  was  broken,  and  the 
flat  forced  out  into  the  stream.  The  team  and  fore  wheels  had  passed 
into  the  flat,  and  the  chain  broke  as  the  hind  wheels  struck  upon  the 
end  of  tne  flat,  and  thus  prevented  them  from  entering,  and  left  the  hinder 
part  of  the  wagon  suspended  in  the  water.  The  team  were  cut  loose  and 
and  two  of  the  mules  were  drowned,  and  the  plaintiS''s  goods  were 
damaged  in  the  wagon,  to  the  amount  of  $G50. 

It  was  sought  to  make  the  defendant  liable,  on  the  ground  of  his  being 
a  common  carrier.  There  was  no  proof  that  the  plaintiff  paid,  or  had 
agreed  to  pay,  or  was  told  he  would  have  to  pay.  He  relied  on  what 
was  alleged  to  be  the  common  use  of  the  ferry  for  all  who  travelled  that 
way,  and  the  habit  of  the  defendant  to  receive  pay  from  those  *who  r^.onf. 
passed.  It  Wiis  proved  that  three  carriages  and  five  wagons  were  L 
put  over  the  river  at  this  ferry  the  day  before  the  plaintiff's  wagon,  and 
that  for  each  of  them  the  defendant  received  pay,  saying  to  one  person, 
"  the  charge  was  fifty  cents,"  and  to  another,  "all  ferries  were  allowed 
double  price  in  high  water."  Another  witness  proved  that  he  had  often 
crossed  there,  and  always  paid  ferriage  to  some  one,  whoever  put  hira 
over,  once  to  the  defendant  himself,  and  once  to  his  son.  On  the  other 
hand,  it  was  proved  that  the  ferry  was  a  private  ferry,  used  only  for  the 
convenience  of  the  mills  and  plantation,  that  no  ferryman  was  kej)t  there, 
that  the  miller,  a  negro  with  a  wooden  leg,  put  over  such  as  desired,  and 
accepted  what  was  offered,  which  he  kept;  that  lads  who  came  to  the 
mill  frequently  did  the  same  thing,  that  no  charge  was  made,  but  that 
strangers  usually  offered  to  pay,  and  it  was  usually  accepted.  Several 
persons  testified  that  they  were  in  the  habit  of  crossing  there,  and  were 
never  charged,  and  never  paid.     It  was  proved  that  the  plaintiff's  party, 


682  COLUMBIA,    MAT,    1842.      VOL.  H.  [*366 

before  they  left  the  main  road,  were  told  that  it  was  a  private  ferry,  and 
not  a  public  one.  Several  of  the  party  did  pay  the  defendant  after  cross- 
ing, to  whom  he  said  he  made  no  charge,  but  who  insisted  on  paying 
him  for  his  trouble. 

The  jury  were  instructed  that  the  defendant  was  liable  for  the  damage 
sustained  by  the  plaintifl",  if  he  undertook,  for  hire,  to  convey  the  wagon 
across  the  stream,  although  at  his  private  ferry.  There  seems  to  be  no 
exception  to  the  charge,  and  it  need  not  be  here  fully  stated. 

Another  ground  of  action  was,  that  the  defendant  was  guilty  of  gross 
negligence.  It  was  alleged  that  the  chain  was  insutTicient,  and  that  even 
slight  diligence  was  not  used  in  preparing  the  bank  fur  the  admission  of 
wagons.  To  this  it  was  replied,  that  many  loaded  wagons  and  carriages 
had  passed  the  day  before  ;  and  on  that  occasion,  that  the  first  wagon 
that  crossed  was  a  much  larger  and  heavier  wagon  than  the  plaintitTs. 
And  the  charge  was  retorted,  that  the  loss  was  owing  to  the  want  of 
skill  and  diligence  on  the  part  of  the  driver  of  the  plaintiff's  wagon.  It 
was  a  question  of  fact,  and  submitted  to  the  jury,  with  such  remarks  as 
do  not  appear  to  be  found  fault  with,  and  without  the  intimation  of  any 
opinion  on  the  part  of  the  Court. 

Verdict  for  the  defendant. 

^oj-'-i       *The  plaintiff  appeals  for  a  new  trial,  on  the  grounds  : 

""-'  1.  Because  the  defendant's  ferry  was  a  public  one,  established  by  more 
than  thirty  years'  use. 

2.  Because  all  the  witnesses  on  both  sides,  proved  that  strangers  had  always 
been  charged  at  the  deieudaut's  ferry,  consequently  he  was  liable  as  a  comniou 
carrier. 

3.  Because  the  defendant  was  guilty  of  gross  negligence,  and  theref\)re  the 
verdict  should  have  been  for  the  plaintiff. 

4.  Because  the  verdict  was  against  law  and  evidence. 

Boho,  for  the  motion,  contended  that  the  keeper  of  a  ferry,  unless  he  advertises 
that  he  does  not  intend  to  charge,  is  ;jnwrt  facie  understood  to  be  responsible  for 
losses.  Either  the  keeper  of  a^public  or  private  ferry  is  responsible  if  the  party 
crosses  with  the  belief  that  he  has  to  pay,  and  that  the  owner  is  responsible.  He 
contended  that  inasmuch  as  persons  had  crossed  this  ferry  the  day  before  the 
plaintifl'  did,  and  the  defendant  received  pay  from  them,  it  was  reasonable  that 
they  would  be  charged  also,  and  this  was  sufficient  evidence  to  charge  the 
del'emlant.  If  the  defendant  ever  charged  before  this  crossing,  he  l>ecame  a 
common  carrier,  and  was,  therefore,  liable  to  the  plaintiff.  Cited  1  N.  &  McC.  17  ; 
2  til.  ];).  If  a  party  takes  persons  or  goods  to  carry,  he  is  presumed  to  charge, 
unless  he  advertises  to  the  contrary.     Cited  Law  of  Carriers,  10. 

Burt,  contra,  said  it  was  a  jury  case,  and  this  Court  would  not  disturb  their 
finding,  unices  lor  misdirection,  which  was  not  complained  of. 

Younij,  same  side.  Is  the  defendant  a  common  carrier?  Cited  Story  on  Bail. 
322.  Do  the  acts  of  defendant  show  that  this  was  a  public  employment  1  Referred 
to  2  N.  &  McC.  21.  'J'hirty  years'  use  of  a  ferry  does  not  constitute  it  a  public 
ferry.  The  plaintiff  was  bound  to  inquire  before  he  entered  the  tlit  whether  this 
was  a  pnbli(i  ferry  and  the  defendant  responsil)le.  The  plaintiff  did  make  the 
iiKjuiry,  and  was  infornu^d  that  it  was  not  a  public  ferry.  Plaintiff  was  advertised, 
and  ill)  ^llow(■d,  by  his  own  acts,  that  he  did  not  e.xpect  to  be  chaiged.  It  was  a 
private  road  leading  to  a  private  ferry.  It  was  not  chartered,  and  only  kept  for 
private  use. 

*3631       *C'«'''«.  V")'  Kaiu.e,  J.     It  is  said  by  the  Court  in  Cohen  vs. 
IIume,{a)  "That  it  is  not  now  to  be  made  a  question  whether  a 

(a)  1  M'C.  444.     An. 


*368]  LITTLEJOHN    VS.    JONES.  583 

ferryman  is  a  common  carrier.     Tliat  lias  l)cen  acljudcrpd  in  Cook  vs. 
Gourdine,  and  recognized   in   Milea   vs.   Johnson,  (1  McC.  157.")(a) 
When  we  look  to  the  definition  of  a  common  carrier,  one  who  under- 
takes for  hire  or  reward  to  transport  the  j^oods  of  such  as  choose  to 
employ  him,  from  place  to  place,  it  seems  straiifre  that  it  should  have 
ever  been  doubted  here,  that  the  owner  of  a  public  or  chartered  ferry 
is  to  be  regarded  as  a  common  carrier.     For  notwithstanding  what  is 
said  by  Mr.  Justice  Nott  in  Cook  vs.  Gourdine,  I  can  see  no  real  differ- 
ence between  the  transportation  of  goods  in  a  boat  across  a  stream  from 
bank  to  bank,  and  along  a  stream  from  one  point  to  another.     Nor  does 
there  seem  to  be  any  reason  why  this  liability  should  be  confined  to  per- 
sons who  keep  chartered  ferries  on  public  roads.     A  man  may  so  use  his 
private  ferry,  on  a  road  not  opened  by  public  authority,  nor  repaired  by 
public  labor,  as  to  sul)ject  himself  to  the  lialjility  of  a  common  carrier;  if 
he  undertake^?  for  hire  to  convey  across  the  river  all  persons  indifferently, 
with  their  carriages  and  goods.    Whether  the  defendant  had  made  himself 
so  lial>le,  was  a  question  which  depended  upon  the  habitual  emi)loyment 
of  the  ferry  heretofore,  inasmuch  as  there  was  no  proof  that  the  plaintiff 
paid  ferriage  or  had  agreed  to  pay.     An  express  contract  for  payment 
of  a  specific  sura  was  not  necessary  to  charge  the  defendant,  nor  indeed 
an  express  contract  that  he  should  be  paid  any  thing.     It  is  equally  clear 
that  he  was  not  liable  as  a  carrier,  if  the  undertaking  was  gratuitous,  and 
so  regarded  by  the  parties.     This  question  was  submitted  to  the  jury, 
upon  the  proof  of  the  previous  usage  there — whether  he  had  so  used  the 
ferry  as  to  induce  the  common  belief  that  he  conveyed  passengers  and 
their  goods  for  compensation  ?     Whether  he  had  held  himself  out  to  the 
world  as  ready  at  all  times  to  convey  across  the  stream  such  as  traveled 
that  road  for  the  customary  rates  of  ferriage  ?  or  the  contrary.     The 
ferry  was  an  appendage  to  the  plantation  and  mills ;  there  was  no  ap- 
pointed   ferryman    habitually  employed ;   travelers   from  distant  places 
usually  offered  pay,  and  it  was  usually  accepted  ;  but  this  was  not  con- 
sidered a  charge  so  much  as  a  mere  gratuity,*  and  was  retained  r^oga 
by  the  person  who  actually  officiated  as  ferryman,  instead  of  being  ^ 
claimed  by  the  defendant  or  paid  to  hira.     Under  such  circumstances  it 
could  hardly  be  said  that  he  incurred  the  obligation  to  convey  across  the 
stream  all  who  apyilied  and  offered  to  jjay ;  or  that  when  he  did  under- 
take, he  subjected  himself  to  the  liabilities  of  a  common  carrier,  as  a  per- 
son performing  the  work  for  a  reward.    The  Court  perceives  no  sufficient 
reason  to  disturb  the  verdict  of  the  jury,  which  has  been  found  on  the 
belief  that  the  undertaking  of  the  defendant  was  without  reward.      That 
there  has  been  a  ferry  there,  used  by  those  wlio  have  heretofore  owned 
the  properly,  for  thirty  years  or  more,  cannot  help  the  plaintiff,  if  the 
use  has  been  strictly  private,  as  the  jury  suppose.    The  defendant  has  not 
set  up  any  right  by  prescription,  and  until  he  does,  we  need  not  consider 
what  he  may  claim.     The  question  of  gross  uegligeuce  was  also  disposed 
of  by  the  jury. 

Motion  refused. 

Richardson,  O'Xeall,  Evans  and  Butler,  JJ.,  concurred. 
See  5  Rich.  22.     An. 
(a)  2  N  &  M'C.  19.     An. 


584  COLUMBIA,    MAT,    1842.       70L.  II.  [*369 


Oliver  Simpson,  Adm'r  of  Michael  Ryan,  deceased,  vs.  John  Barry, 

Where  money  has  been  placed  in  the  hands  of  a  party,  as  agent  or  hailee,  with 
instructions,  for  a  i);irtii'uhu'  purpose,  and  the  bailee  has  acted  in  pursuance  of 
these  instructions,  the  administrator  of  the  person  placing  the  funds,  cannot 
sustain  an  action  of  assumpsit  against  the  bailee,  for  the  particular  fund. 

Before  O'Neall,  J.,  at  Edgefield,  Extra  Term,  January,  1842. 

This  was  an  action  of  assumpsit.  The  facts  which  were  brought  out, 
without  any  objection  as  to  the  state  of  the  pleadings,  were  as  follows  ; 
The  deceased  was  a  Roman  Catholic  ;  the  defendant  is  understood  to  be 
*Q-ni  pi'ipst  of  the  *same  communion.  The  deceased  some  time  before 
-I  his  death,  placed  in  defendant's  hands  $170,  to  be  deposited  in  one 
of  the  Augusta  banks,  for  safe  keeping,  which  was  done.  In  his  last 
illness,  the  defendant  visited  the  deceased,  and  he  directed  him  to  keep 
$30  or  $40  for  charity,  and  the  balance  to  send  to  his  mother,  in  Ireland. 
The  deceased  died  at  the  house  of  the  plaintiff,  in  Hamburg,  South  Caro- 
lina. The  defendant  then  was,  and  still  is,  a  resident  of  Augusta,  Georgia. 
He  produced  in  evidence  a  power  of  attorney  from  the  deceased's  mother, 
authorizing  him  to  collect  his  entire  estate.  The  plaintiff  administered 
in  South  Carolina,  and  arrested  the  defendant  with  a  bail  writ,  in  Ham- 
burg. This  writ  was  returnable  to  March  Term,  1840.  On  the  8th  of 
Se))teraber,  1840,  the  defendant  administered  in  Georgia. 

The  presiding  Judge  held,  that  inasmuch  as  the  fund  in  dispute  was  on 
deposit  in  one  of  the  banks  of  Augusta,  Georgia,  the  ])laintiff's  adminis- 
tration in  South  Carolina  gave  him  no  right  to  its  administration  ;  and 
this  was  more  especially  the  case  after  the  defendant  had  administered  in 
Georgia.  The  counsel  for  the  plaintitf  sul)mitted  to  a  nonsuit,  with  leave 
to  move  the  Court  of  Appeals  to  set  it  aside,  which  he  now  does,  on  the 
accompanying  grounds  : 

1.  Because  the  residence  of  the  intestate  being  in  South  Carolina,  drew 
within  the  jurisdiction  his  chattels  and  credits ;  and  the  plaintifF,  as  the  admin- 
istrator, was  entitled  to  the  possession  of  them. 

2.  Hecaii.'^e  the  grant  of  adiuinistration  to  plaintiff,  being  prior  in  date  to  the 
grant  of  administration  to  defendant,  the  title  to  the  fund  in  question  had  been 
fi.xed  in  the  plaintiff,  and  could  not  be  divested  by  the  subsequent  adniiuistration 
of  the  defendant. 

3.  Because  the  grant  of  administration  to  the  defendant,  after  the  coin- 
niencenuMit  of  the  suit,  constituted  no  defence,  inasmuch  as  the  case  must  be 
dutermiMcd  by  the  state  of  things  at  the  conimencement  of  the  suit. 

4.  Because  the  defence  of  defendant  should  have  been  made  by  puis  darri/'n 
Cfniliiiiiiuicr,  and  could  not  be  made  under  the  general  issue,  which  was  the 
only  plea  j)lca(led. 

*37n       *  C'lrrolJ,  for  the  motion,  cited  and  relied  on  Story's  Treatise,  272;  also 
from  4:51,  432,  in  a  note;   7  .John.   Chan.  Rep.  4t  ;  1  Williams   on  Execu- 
tors ;  2  Hail.  Kep.  428 ;  Rice  Rep.  314. 

Griffin,  cf.jitra,  referred  to  1  N.  &  McC.  237 ;  1  Chitt.  Black.  433  ;  Storv's  Con. 
Laws,  433,  13  chap.  2d  edit.  ;  7  .Johns.  Chan.  45  ;  1  lb.  153  ;  2  Mass.  ;  3  lb.  413. 

Curia,  per  O'Nkalt-,  J.  If  it  be  true  tliat  the  money  of  the  deceased 
was  deposited  l)y  the  defendant  in  one  of  the  banks  of  Augusta,  Georgia, 
in  his  own  name  (and  it  is  perhaps  in  this  point  of  view,  on  a  nonsuit, 


*311J  BRONSON  VS.    STROUD.  585 

that  tlie  case  should  be  refranlod,)  it  is  then  necessary  to  inquire  whctlier 
this  case  can  be  sustained?  The  defendant,  it  must  be  reniemljered,  was 
tlie  agent  and  bailee  of  the  deceased;  he  acted  in  precise  conformity  to 
bis  instructions,  and  it  is  plain  that  the  deceased  would  have  no  right  of 
action,  unless  the  defendant  had  refuse!,  upon  demand  made,  to  account 
for  the  fund.  The  i)resent  plaintiff"  has  no  other  or  greater  rights  than 
his  intestate.  The  defendant  could  not,  therefore,  be  regarded  as  debtor 
to  the  deceased,  until  he  had  in  some  way  appropriated  his  money  to  ins 
ownuse.(//)  No  demand  was  proved.  This  is  enough  to  show  that  the 
action  now  under  consideration  cannot  be  sustained.  It  is,  therefore, 
unnecessary  to  consider  the  effect  of  the  two  administrations  in  Georgia 
and  Soutli  Carolina. 

The  motion  is  dismissed. 

Evans,  Earle  and  Butler,  JJ.,  concurred. 


*Thomas  Bronson  r8.  CiiANEY  Stroud,  [*oT2 

The  parol  promise  of  a  party  to  pay  the  deht  of  a  third  person,  or  to  sign  a  note 
with  him  as  security,  is  a  colhiteral  undertaking,  and  void,  iiiider  tlxe  statute 
of  frauds.  There  is  no  distinction  between  a  promise  made  before  and  after  tlie 
delivery  of  the  goods.  The  promise,  iu  order  to  charge  the  party,  must  be  in 
writing. 

Before  Earle,  J.,  Greenville,  Spring  Term,  1842. 

This  was  a  special  action  on  the  case,  for  refusing  to  give  a  note  of  hand 
for  certain  hogs,  which  the  plaintiff  alleged  were  sold  to  the  defendant,  or 
delivered  to  David  Henning  on  the  credit  of  the  defendant,  and  on  his 
undertaking  that  he  would  sign  a  note  with  Henning  for  the  amount, 
when  tlie  same  should  be  presented,  aud  which  he  afterwards  refused  to 
do  when  requested. 

The  su!)joined  report  of  his  Honor,  Judge  Earle,  will  fully  explain  the 
facts  and  the  points  made  iu  the  court  below,  and  the  questions  decided 
by  the  court. 

"  One  Black,  a  witness  for  the  plaintiff",  deposed  that  he  had  hogs  at 
Greenville  for  sale;  that  Henning  applied  to  purchase  ;  that  the  plaintiff 
replied  that  he  must  be  made  safe;  that  Henning  talked  privately  with 
Stroud,  who  then  returned  and  said  to  the  plaintiff"  he  would  be  Hen- 
ning's  security  ;  told  him  to  let  Henning  have  the  hogs,  stipulating  the 
number  that  Henning  was  to  get,  but  added  that  he  lived  some  thirteen  or 
fourteen  miles  off,  and  wished  to  return  home  that  evening,  and  could  not 
wait  until  the  hogs  were  weighed,  but  directed  the  phiintiff,  when  they  were 
weighed,  to  make  the  calculation  and  draw  the  note  for  amount,  and  let 
Henning  sign  it,  and  then  bring  or  send  it  to  him,  and  he  would  sign  it 
with  him.  He  said  he  would  go  in  with  Henning  in  the  note  for  the 
hogs.  The  hogs  were  accordingly  delivered  to  Henning  on  this  under- 
standing of  Stroud  A  note  was  drawn  and  signed  by  Henning,  aud 
presented  afterward  to  Stroud  for  his  signature,  which  he  refused. 

(a)  See  Barber  vs.  Anderson,  1  Bail.  360.     An. 


586  COLUMBIA,   MAT,    1842.      VOL.  IL  [*3T2 

"  Henning  was  likewise  sworn,  and  deposed  that  when  he  was  pur- 
chasing the  hogs,  the  phiintiff  said  that  he  was  requiring  security  of  all 
who  dealt  with  him  ;  that  he  told  the  plaintitF  to  take  the  note  to  Stroud, 
expecting  he  would  sign  it ;  he  did  not  know  that  he  would  do  so  ;  he 
^oHo-i  *had  not  spoken  to  him  for  that  purpose.  He  had  dealt  a  great 
-I  deal  with  the  plaintiff  before,  and  did  buy  of  him  afterwards  on 
credit. 

"  A  motion  was  made  for  a  nonsuit,  on  the  ground  that  the  under- 
taking of  the  defendant  was  collateral,  and  within  the  statute  of  frauds. 
The  question  was  not  free  from  difficulty.  I  thought  it  depended  on  this, 
to  whom  the  credit  was  given  in  the  first  instance.  On  the  evidence  of 
Black,  I  thought  it  clear  that  the  plaintiff  had  reiused  to  sell  to  Henning, 
except  upon  Stroud's  promise  to  sign  the  note  with  him;  the  fact  of 
taking  a  note  from  Henning  proved  nothing  to  the  contrary,  as  it  was  a 
joint  and  several  note,  intended  to  be  signed  by  Stroud,  according  to  the 
agreement.  And  as  Stroud  directed  the  plaintiff  to  let  Hentung  have 
the  hogs,  prescribed  the  numljer,  and  only  did  not  sign  the  note,  because 
he  could  not  wait,  I  thought  it  not  unreasonable  to  conclude  that  the 
credit  was  given  to  him  alone,  and  that  the  undertaking  was  not  within 
the  statute.  I  thought  that  there  was  a  difference  between  a  promise  to 
sign  a  note  with  Henning,  which  would  have  bound  him  directly  for  the 
whole  amount  absolutely,  and  a  promise  to  pay  the  amount  if  he  did  not. 
I  overruled  the  motion  for  nonsuit. 

"  Henning  was  re  examined  for  the  defendant.  He  told  Stroud  that 
Brons(Ui  required  security  from  him.  He  had  no  doubt  that  Stroud 
would  sign  the  note.  Bronson  retained  the  note  he  gave  him,  demanded 
and  received  payments  on  it,  and  finally  brought  suit  for  the  balance,  (in 
which  he  obtained  judgment,)  before  this  action  was  brought  against 
Stroud.  The  other  evidence  offered  seemed  wholly  immaterial.  The 
same  i>oint  was  made  before  the  jury  as  on  the  motion  for  a  nonsuit.  I 
instructed  the  jury,  if  they  were  satisfied  either  that  Stroud  purcliased  the 
hogs,  or  that  they  were  delivered  to  Henning  solely  on  Stroud's  credit, 
and  on  his  promise  to  sign  a  note  with  Henning,  that  I  thought  it  was  an 
original  contract,  not  within  the  statute  of  frauds,  and  the  plaintiff  should 
recover ;  if  the  hogs  were  sold  and  delivered  to  Henning,  and  the  credit 
was  given  to  him,  on  his  prouiise  to  give  security,  even  with  the  defend- 
ant's promise  to  sign  with  him,  then  the  defendant  should  have  verdict. 
jj..,H  i-i  The  third  exception  *to  the  charge  arises  out  of  a  remark  in  com- 
-'  menting  on  the  cases  cited,  of  goods  charged  to  one,  and  an  attempt 
to  make  another  liable.  Here  there  could  be  no  such  evidence,  from  the 
nature  of  the  article  soldi  The  taking  of  the  note  from  Henning  was,  in 
the  first  instance,  according  to  the  agreement,  and  proved  nothing  as  to 
wIkhii  the  credit  was  given.  I  did  not  say  that  a  promise  before  or  after 
delivery  made  any  ditterence  as  to  the  liability  of  the  defendant,  as  sup- 
\)0M'{\  in  the  fourth  ground.  The  i)romise  being  made  before  the  plaintiff 
would  deliver  the  hogs  to  Henning,  was  a  circumstance  which  tended  to 
show  that  the  credit  was  given  to  Stroud.  The  facts  that  the  plaintiif 
returned  the  note,  demanded  payment  from  Henning,  waited  until  it  fell 
due,  then  sued  him,  before  he  resorted  to  Stroud,  were  calculated  to  lead 
to  the  opposite  c()ncliisi(ni.  Tlie  eflect  of  these  circumstances  was  sub- 
mitted to  the  jury,  with  the  frc'ucral  instruction  above  recited, 

"  Verdict  for  the  plaintiif  for  the  balance  of  the  price  of  the  hogs." 


*374] 


BRONSON   VS.    STROUD.  587 


The  defendant  appealed,  and  renewed  his  motion  for  a  nonsuit  on  the 
followinfj  grounds : 

1st.  Because  tlie  case  made  out  by  plaintiff  was  a  "  special  promise  to 
answer  for  the  default  or  niiscarriag'e  of  another  person,"  without  any  "  auree- 
ment,"- "  memorandum  or  note  thereof,"  being  in  writing  and  signed  by  the 
defendant. 

2d.  Because  the  proof  was,  on  the  part  of  the  plaintiff,  that  the  defendant 
had  vi'rballji  promised  to  go  Hcnning's  security  for  the  purchase  of  forty  hogs, 
and  afterwards  refused. 

3d.  Because  the  proof  was,  that  Henning  contracted  for  the  hogs,  pnrcha.ted 
them  of  plaintiff,  they  were  dellpfred  to  him,  he  made  use  of  the  meat,  ijave  //Is* 
note  for  the  purchase  money,  when  it  became  due  pn/d  $l(>0  on  it,  was  sued  for 
the  balance,  and  a  judgment  obtained.  Fall  Term,  1840. 

4th.  Because  the  proof  did  not  support  the  only  count  in  the  declaration, 
■which  alleged  that  defendant  purchased  the  hogs  for  himself.  For  if  there  had 
been  any  such  proof  the  defendant  and  Henning  should  have  been  used  joinili/, 
*and  a  separate  action  against  the  defendant  would  not  lie  on  a,  Joint  r^^l^ 
contract  by  bim  and  Heuuiug.  ^ 

And  for  a  new  trial. 

1st.  Because  his  Honor  erred  in  charging  the  jury  thafit  was  an  original 
contract  on  the  part  of  the  defendant,  and  therefore  not  within  the  statute  of 
frauds  and  perjuries. 

2d.  Because  his  Honor  erred  in  charging  the  jury  that  Stroud,  the  defendant 
purchased  the  hogs  himself,  and  that  no  credit  was  given  to  Henning  by  the 
plaintiff. 

3d,  Because  his  Honor  charged  the  jury  that  the  law  applicable  to  the  case 
would  have  been  different  if  tlie  plaiiitilf  had  only  charyed  Henning  with  the 
price  of  the  hogs,  and  not  taken  his  note  for  it. 

4th.  Because  his  Honor  charged  the  jury  that  the  promise  made  by  Stroud, 
the  defendant,  being  before  the  hogs  were  delivered  to  Henning,  made  a 
difference,  and  took  the  case  out  of  the  statute. 

5th.  Because  his  Honor  charged  the  jury  that  if  they  believed  the  testimony 
of  Black,  a  witness  for  the  plaintiff,  he  was  entitled  to  recover. 

6th,  Because  the  verdict  was,  otherwise,  against  law  and  evidence. 

Perry,  for  the  motion,  said,  was  the  credit  given  to  Henning  or  not  ?     If  Stroud 

was  an  original  purchaser,  the  declaration  conld  not  be   sustained.     He   cited,  in 

support  of  his  views  of  the  case,  2  L.  Ray.  Kep.  1085  ;   2  T.  R.  81 ;  1  Salk.  27  ; 

1   Mc.C.  104;   2  L.  Ray.  224;   6  Rand.  509;   1    H.  Black.  Rep.  120;   Roberts  on 

.  Frauds,  218  ;  1  B.  &  P.  158  ;  1  McC.  395  ;  8  Johns.  29  ;  1  McM.  280. 

Yoiing,  contra,  contended  that  the  verdict  should  be  sustained.  Whether  it 
was  an  original  or  a  collateral  undei'taking,  in  either  eveirt  the  verdict  must  stand. 
To  whom  was  the  credit  given  !"  To  whom  were  the  hogs  delivered  ?  To  Hen- 
ning, as  the  agent  of  defendant.  The  undertaking  of  the  defendant  was  original. 
Cited  4  Taunt.  611.  If  one  apply  to  another  to  deliver  goods  to  a  third  person, 
and  j)romises  to  accept  a  bill,  or  promises  to  sign  a  note  for  the  goods,  this  takes 
the  case  out  of  the  statute  of  frauds.  *The  verdict  in  this  case  could  be  r^o-,' 
sustained  on  the  count  in  the  declaration  for  deceit. 

Towns,  in  reply,  contended  that  this  was  a  collateral  and  void  undertaking,  and 
came  clearly  within  the  provifiions  of  the  statute  of  fi-auds.  He  cited  Coniyu  on 
Contracts,  51.  There  is  a  dillerence  between  a  conditional  and  absolute  under- 
taking. 1  Comyn  on  Contracts,  53,  54 ;  1  t-aund.  Rep.  211,  note  I ;  Chitty  on 
Contracts,  202-4,  576. 

Curia,  per  Evans,  J.  From  the  evidence  in  this  case,  I  think  it  is 
pretty  clear,  that  but  for  Stroud's  promise,  Henning-  would  not  have  got 
the  hogs  from  the  plaintiff,  and  therefore  it  may  be  said,  in  some  sense, 
that  the  credit  was  giveu  to  Stroud  ;  but  that  is  always  the  case  where 


*'. 


n] 


588  COLUMBIA,   MAY,    1842.      VOL.  II.  [*376 

the  creditor  refuses  to  trust  a  debtor  unless  he  is  "made  safe,"  by  tlie 
promise  of  a  third  person.  If  a  mercliant  sajs  to  A,  I  will  not  trust  you 
with  my  goods,  and  thereupon  B  says,  let  him  have  the  goods,  and  I  will 
see  you  paid,  in  such  case,  although  the  goods  would  not  have  been 
delivered  but  for  the  promise,  it  has  never  been  supposed  thar  13  was 
liable,  without  writing,  if  the  creditor  looked  in  any  way  to  A  for  the 
payment  of  the  debt;  but  if  no  credit  whatever  was  given  to  A,  then  B 
would  be  regarded  as  the  one  to  whom  credit  alone  is  given,  and  would 
be  bound  by  the  promise.  The  promise  of  Stroud  was,  that  "he  would 
be  Henning's  security,"  that  he  would  sign  a  note  "  with  him"  for  the 
amount.  The  case  then,  presents  this  cpiestion,  whether  a  parol  promise 
to  be  another's  security,  or  to  sign  a  note  with  him,  upon  the  faith  of 
which  property  is  sold  and  delivered,  is  not  void  under  the  statute  of 
frauds.  The  4th  section  of  the  statute  of  frauds  provides  "  that  no  action 
shall  be  brought  whereby  to  charge  the  defendant  upon  any  special 
promise  to  answer  for  the  debt,  default,  or  miscirriage  of  another 
person,  unless  the  agreement  upon  which  such  action  be  brought,  or 
some  memorandum  or  note  thereof,  shall  be  in  writing,  and  signed  by  the 
party  to  be  charged  therewith,  or  some  other  person  thereunto  by  him 
lawfully  authorized."  It  is  said  by  Chitty,  (Chitty  on  Con.,  402,)  if  the 
person  for  whose  use  goods  are  furnished  be  liable  at  all,  the  defendant's 
engagement,  though  it  were  the  chief  inducement  to  the  plaintiS'  to  supply 
the  *goods,  is  collateral,  and  must  be  reduced  to  writing.  It  is 
also  said  in  the  same  work,  that  the  statute  applies  if  the  third 
party  he  at  all  trusted.  The  principle  thus  stated  is  well  sustained  by 
the  authorities.  Thus,  in  Buckmyer  vs.  Uarnall,  2  Ld.  R.,  1(I85,  the 
plaintiff  declared  that  the  defendant,  in  consideration  that  the  plaintiff, 
at  his  request,  would  lend  to  one  English  a  horse  promised,  that  English 
would  re-deliver  the  horse.  At  first  some  of  the  Judges  doubted  if  this 
was  not  an  original  or  direct  undertaking ;  but  after  consultation,  it  was 
decided  that  the  defendant  was  not  liable  on  this  parol  agreement,  because 
English  might  be  sued  in  detinue  for  the  horse.  So,  also,  in  Matson  vs. 
Wliarhnm,  2  T.  R.,  80,  Justice  Buller  says,  "the  general  rule  now  taken 
is,  if  the  person  for  whose  use  the  goods  are  furnished  is  liable  at  all,  any 
])r(unise  Ity  a  third  person  to  pay  that  debt  must  be  in  writing,  otherwise 
it  is  void  under  the  statute  of  frauds."  In  this  case  a  distinction  was 
attempted  to  be  made  between  jiromises  before  delivery  and  after,  but 
the  Court  denied  there  was  any  such  distinction.  These  are  quoted  as 
the  leading  cases,  in  most  of  the  cases  since  decided,  both  in  England 
and  the  American  States,  and  are  so  referred  to  in  the  case  of  Leland 
vs.  Creyon,  1  McC,  100;  In  that  case,  Judge  Gantt,  delivering  the 
opinion  (»f  the  Court,  says,  if  Leonard,  to  whom  and  for  whose  use  the 
poods  were  delivered,  was  originally  liable  to  be  sued,  then  the  promise 
of  Creyon  was  collateral  and  void.  The.se  authorities,  with  numerous 
others  wliich  might  be  cited,  go  to  establish  the  i)rinciple  that  if  there  be 
any  lial)ility  on  tiie  party  to  whom  the  goods  are  delivered,  upon  which 
an  action  may  be  brought,  the  promise  of  a  third  person  to  pay  the  same 
debt,  should  be  in  writing.  The  principle  is  further  illustrated  by  those 
cases  which  establish  a  promise  to  pay  the  del)t  of  another,  subsisting  at 
the  time  of  the  promise;  such  as  the  case  of  Corbel  vs.  Cochran,  Riley's 
Law  Cases,  44.     All  these  cases  go  on  the  ground  that  the  original 


*e377]  BRONSON    VS.    STROUD.  589 

debtor  was  wholly  discharj^ed.      Unless  that  had  been   the  case,   the 
])romise  could  not  have  been  binding;  it  would  have  been  collateral,  and 
within  the  statute  of  frauds.    What,  then,  was  the  promise  of  the  defend- 
ant ?     At  the  utmost,  it  is  no  more  than  a  promise  to  be  Ilenning's 
security,  ns  stated  by  the  witness  in  one  part  of  his  *examination,   r:(:q.,o 
or  as  Slated  in  another  part,  to  sign  a  note  with   Henning  for  the  •- 
price  of  the  hogS.      So  far  as  the  obligee  is  concerned,  the  law  makes  no 
distinction  between  principal  and  security.     He  has  a  right  to  look  to 
all,  and  on  a  joint  and  several  contract,  may  hold  each  liable,  severally, 
to  him.      ]^ut  if  the  rule  be,  as  I  suppose,  that  both  cannot  be  liable  on  a 
parol  agreement  at  the  same  time  for  the  same  debt,  uidess  they  are  joint 
contrnctors,  if  Henning  was  liable  at  all,  Stroud  was  not.     This  liability 
was  not  to  be  exclusive,  but  was  according  to  the  agreement  to  be  super- 
added to  Henning's,  by  signing  his  name  to  a  note  to  be  signed  also  by 
Henning.      Taking  the  agreement  therefore  as  proved,  and  giving  it  the 
oidy  rational  interpretation  which  it  will  admit  of,  to  wit :  that  if  Bronson 
would   deliver  the   hogs   to    Henning,   the  defendant    would    sign   with 
Henning  a  joint  and  several  note  for  the  payment  of  the  money,  I  can 
come  to  no  other  conclusion  but  that  the  promise  of  the  defendant  was 
not  a  primary,  or  original  and  direct  undertaking,  but  was  what  is  usually 
in  the  cases  decided,  called  a  collateral  undertaking,  which  is  not  perhaps 
in  all  cases  the  most  appropriate  term  to  convey  the  idea.     But  if,  as  we 
are  at  liberty  to  do,  (Cliitty,  Con.,  404,  and  cases  referred  to.)  we  look 
to  the  conduct  and  acts  of  Bronson  to  aid  us  in  the  interpretation  of  the 
contract,  there  can  be  but  little  doubt  of  what  was  his  interpretation  of 
it.      He  retained  the  note,  received  part  payment  from  Henning,  treated 
it  as  his  note,  sued  and  recovered  judgment  on  it,  and  never  resorted  to 
Stroud   until  after  Henning's  insolvency.     As  the  plaintiff  held  Henning 
liable  to  him  for  the  debt,  then  Stroud's  promise  was  to  pay  Henning's 
debt,  and  should  therefore  have  been  in  writing.     H  the  credit  had  l)een 
given  to  Stroud,  the  promise  would  have  been  that  he  would  pay  the 
money,  or  give  his  own  note  for  it.     If  such  had  been  the  fact,  then  he 
would  have  been  liable      It  is  supposed  this  is  like  the  promise  to  accept 
a  bill  of  exchange,  which,  it  has  been  held,  is  binding,  although  it  be  by 
parol,  (4th  Taunton,  64,)  but  that  case  is  in  no  respect  like  this. (a)     The 
acceptor  is   ])resumed  to  accept  a  bill   on  the  faith   of  the  funds  in  his 
hands,    of  whicli   the  bill  is   an   appropriation.     His   undertaking  and 
]ial)ility  is  not  for  the  debt  or  default  of  another.     He,  and  he  alone,  is 
primarily  ''liable.     No  other  is  liable  except  on  his  default.      His  r:j;.3>yQ 
is  not  a  promise  to  pay  the  debt  of  the  drawer,  but  to  ai)ply  the  *- 
drawer's  funds  in    his   hands   to   the   payment  of  the  drawer's  debt,  or 
according  to  his  order.     I  tliink,  therefore,  the  verdict  is  wrong.     There 
is  no  evidence  to  sustain  it  on  the  i)romise,  and  there  is  nothing  to  support 
the  count  for  deceit.     The  only  remaining  question  is,  shall  there  be  a 
new  trial,  or  a  nonsuit.     There  is  no  dispute  about  the  facts.     The  case 
has  been  considered   on  the  evidence  given  by  the  plaintiff.     The  facts 
being  ascertained,  the  legal  effect  of  them  is  a  question  of  law  as  declared 
in  the  case  of  Leland  vs.  Creyon,  1  McC,  105,  and  it  being  the  opinion 

(a)  See  2  Sp.  37S.     An. 


590  COLUMBIA,   MAT,    1842.      YOL.  II.  [*3T9 

of  this  Court,  that  the   itlaiotiff  cannot  recover  on  his  own  evidence,  a 
nonsuit  shonld  have  been  ordered  on  tlie  circuit. 
The  motion  for  a  nonsuit  is  granted. 

Richardson,  O'Neall,  and  Butler,  JJ.,  concurred. 

Earle,  J.,  (dissenting.)  Notliingcan  be  better  settled,  or  more  gene- 
rally understood,  than  the  distinction  between  original  and  collateral 
undertakings,  with  reference  to  the  statute  of  frauds.  Where  tiie  debt 
of  the  third  ])erson  alleged  to  be  assumed,  has  previously  existed,  it  is 
not  difficult  to  determine  the  liability  of  the  person  making  the  guarantee, 
for  it  must  be  in  writing,  unless  the  former  debtor  be  discharged  But 
where  the  debt  is  incurred  at  the  same  time  that  the  promise  is 
made,  as  in  this  instance,  the  liability  of  the  promissor  becomes  a  mixed 
question  of  law  and  fact.  Had  Bronson  sold  the  hogs  to  Henning,  and 
taken  his  note  before  the  defendant's  promise  to  sign  with  him,  it  would 
clearly  have  been  a  case  within  the  statute.  But  the  whole  was  a  simul- 
taneous transaction.  The  defendant  said,  "  let  Henning  have  the  hogs, 
and  I  will  go  in  a  note  with  him  for  the  amount."  It  is  not  an  under- 
taking to  pay  if  Henning  should  not ;  it  is  not  a  promise  that  they  will 
jointly  pay.  It  is  a  promise  that  he  will  do  an  act,  which,  when  done, 
would  have  bound  him  at  once  for  the  whole  debt.  I  cannot  agree, 
therefore,  that  by  force  of  its  express  terms,  the  undertaking  was  to 
become  Henning's  security  merely  ;  or  that  by  any  necessary  implication 
*^9nl  ^'^^  *credit  was  given  to  Henning,  or  given  to  both  of  them  jointly. 
■^  For  when  the  plaintiff  refused  to  let  Henning  have  the  hogs 
until  defendant  undertook,  he  furnished  an  equal  ground  to  believe  that 
the  credit  was  given  wholly  to  the  defendant.  There  was  no  joint  under- 
taking at  all,  and  when  the  plaintiff  took  Henning's  note,  he  did  not 
thereby  manifest  that  he  gave  credit  to  Henning  alone,  or  jointly  with 
the  other,  because  he  cannot  otherwise  claim  from  the  defendant  the  per- 
formance of  his  engagement.  When  he  retained  the  note,  and  accepted 
payment  of  ])art  from  Henning,  he  was  doing  what  he  well  might  do, 
using  Henning's  direct  engagement  in  writing  to  pay  him  the  money, 
given,  it  is  true,  after  the  defendant's  undertaking,  but  certainly  not  super- 
seding it.  At  tlie  utmost,  it  was  a  case  in  which  the  question  of  liability 
depended  clearly  upon  this — to  whom  was  the  credit  given  in  the  first 
instance  ?  and  this  was  i)roperly  for  the  decision  of  the  jury,  to  whom  it 
was  submitted.  The  rule,  as  extracted  from  the  English  cases,  is  thus 
expressed  in  2  Leigh's  N.  P.,  1025.  "It  is  a  question  for  the  jury  in 
such  cases,  whether  credit  was  given  to  the  defendant  before  the  debt 
was  incurred,  or  to  another  as  the  principal,  taking  all  the  circumstances 
of  the  case  into  consideration."  Such  was  the  course  pursued  in  Kcite 
vs.  Temple,-\  B.  &  P.,  157,  where  a  lieutenant  in  the  navy  was  sued  for 
clothes  furnished  the  crew  of  his  vessel,  by  a  slop  seller,  on  this  promise, 
"  I  will  see  you  paid  at  the  pay  table;  are  you  satisfied  ?"  There  was  a 
verdict  for  the  i)laintiff,  and  although  the  court  granted  a  new  trial  (a 
nonsuit  was  not  thought  of,)  it  was  upon  the  circumstances  of  the  case 
wliich  it  was  thought  ought  to  be  submitted  to  another  jury.  So  in 
Darnell  vs.  Trait,  2  Carr.  &  Pay.,  82  ;  an  action  by  a  schoolmaster 
against  an  uncle  for  the  schooling  of  his  nephew,  carried  to  the  plaintiff's 


*380]  STATE   1-.9.    THURSTON".  591 

school  by  tlie  boy's  mother,  without  any  instructions  as  to  who  was  liable. 
The  defendant,  when  tiie  bill  was  sent  to  him,  said,  "  quite  right,  I  am 
answeral)le."  The  Chief  Justice  left  the  question  to  the  jury,  as  to  whom 
the  credit  was  given.  In  Storr  et  ah.  vs.  Scolt,  6  C.  &  P.,  241,  in  the 
same  kind  of  case,  where  the  defendant,  as  steward  of  certain  races, 
selected  at  the  shop  of  the  plaintiff  a  gold  cup,  saying,  "  you  must  send 
the  cup  as  usual,  I  suppose,  to  the  *clerk  of  the  course,"  which  r^ooi 
had  been  frequently  done  by  the  plaintiff  before,  Lord  Lyndhurst  ^ 
said  to  the  jury,  "  the  question  is,  upon  whose  credit  the  cup  was  fur- 
nished ?"  and  left  it  to  them  to  say,  whether  the  credit  was  to  be  given 
to  the  defendant,  or  to  the  clerk  of  the  course.  In  Leiand  vs.  Creyon, 
1  McC,  100,  where  the  Court  ordered  a  nonsuit,  the  goods  were  not 
only  charged  to  a  third  person  on  the  plaintiff's  books,  but  there  was  no 
promise  by  the  defendant  at  all,  and  the  attempt  was  made  to  charge 
him,  by  a  memorandum  on  the  books,  made  by  the  plaintiff  himself  seve- 
ral days  after  the  delivery  of  the  goods.  It  cannot  be  doubted  that  the 
defendant  would  have  been  liable  upon  his  undertaking  to  accept  a  bill, 
15  E.  C.  L.  R.  45  ;  or  to  give  his  own  note  ;  or  I  should  say,  also,  upon 
his  promise  to  endorse  Henning's  note,  to  be  afterwards  procured,  if  the 
article  was  delivered  upon  the  credit  of  this  promise.  I  cannot  perceive 
tliat  it  makes  any  difference  that  it  was  a  promise  to  sign  a  note  with  the 
other,  if  the  credit  was  given  solely  to  hira  on  the  faith  of  that  promise. 
I  admit  fully,  that  the  statute  was  intended  to  include  every  case  of 
mere  surety,  whether  the  agreement  to  be  answerable  was  collateral  to  a 
previous  liability  of  the  principal,  or  concurrent,  and  made  at  the  same 
time  with  some  promise  or  agreement  creating  a  liability  of  such  princi- 
pal delator.  But  I  think  there  is  quite  enough  here  to  sustain  the  ver- 
dict establishing  that  there  was  no  credit  actually  extended  to  Henuing, 
and  that  the  hogs  were  delivered  on  the  credit  of  the  defendant. 


*The  State  vs.  James  Rufus  Thurston.  [*382 

1.  The  defendant  was  a  common  carrier,  owned  a  boat  on  the  Santee,  and  under- 
took to  transport  cotton,  from  Orangeburg  district  to  Charleston,  belonging  to 
various  persons.  Before  reaching  Charleston,  and  while  passing  down  the 
river,  he  communicated  hjs  intention  (to  one  of  the  hands  on  board)  of  convert- 
ing the  cotton  to  his  own  use.  Aftei"wards,  at  ^^Euchaw  Creet,"  in  Charleston 
district,  he  consummated  liis  previous  intention,  by  burning  a  portion  of  the 
cotton  and  disfiguring  the  marks  upon  the  other  bales  by  patching,  and  had  the 
cotton  shipped  on  board  a  steamer  to  Charleston,  and  sold  and  appropriated 
the  sales  to  his  own  use.  Upon  an  indictment  for  grand  larceny  in  Orangeburg 
district,  the  jury  were  charged  by  the  court: 

First.  "That  to  convict  the  prisoner  of  larceny,  there  must  be  a  taking  and  carry- 
ing away  of  the  goods  laid  in  the  indictment,  with  a  felonious  intent,  in  the 
district  of  Oraii(jebiir(j."  Second.  "That  Avhen  the  prisoner  received  the  goods, 
if  he  intended  to  deliver  them  in  good  faith  to  the  consignee  in  Cliarleston,  then 
his  subsequent  fraudulent  approi)riation  of  thena  to  his  own  use  could  not 
make  him  guilty  of  larceny."  Third.  "If  when  the  goods  were  delivered  to 
him  he  received  them  with  the  intention  of  stealing  them,  then  it  was  larceny 
from  the  beginning,  as  laid  in  Orangeburg  district." 


592  COLUMBIA,    MAY,    1.842.      VOL.  IL  [*382 

2.  The  prisoner  was  found  guilty  under  this  charge  of  petit  larceny ;  and  the 
Appeal  Court  held,  upon  appeal,  among  other  things  : 

1st.  That  the  jury,  under  the  circumstances,  were  at  liberty  to  infer  that  the 
defendant,  at  the  time  he  received  the  cotton  in  Orangeburg,  intended  to  steal 
it  and  convert  it  to  his  own  use  ;  and  the  verdict  of  guilty  was  very  properly 
given. 

2nd.  That  the  cotton  so  stolen  by  the  defendant  belonged  to  three  different  indi- 
viduals, and  he  was  very  properly  indicted  in  three  cases,  and  a  conviction  in 
one  case  was  no  bar  to  a  conviction  in  the  two  others.  The  stealing  of  the 
goods  of  different  persons  is  always  a  distinct  larceny. 

Before  O'Neall,  J.,  at  Orangeburg,  Spring  Term,  1842. 

The  prisoner  was  indicted  for  Grand  Larceny  in  three  several  cases. 
In  the  first  case  tried,  he  was  charged  with  stealing  twenty-six  bales  of 
cotton,  the  property  of  Wm.  Theiis.  The  prisoner  was  a  common 
carrier,  owning  a  boat  on  the  -Santee.  He  undertook  to  deliver  cottoa 
to  Wm.  C.  Dukes,  Charleston,  at  SI  50  per  bale.  He  received  the 
cotton  ill  Orangeburg  district,  and  proceeded  below  the  JSautee  Canal  to 
Euchaw  Creek,  into  which  he  put  and  caine  to  anchor.  This  was  in 
Charleston  district.  Going  down  the  river,  he  disclosed  his  plan  to 
appropriate  the  cotton  to  his  own  use  to  one  of  his  hands,  neighbor 
(Jarner ;  and  on  his  refusal  to  take  part  witli  him,  he  said  he  would  kill 
.any  one  that  might  betray  him.  He  took  the  bagging  off"  three  bales, 
and  burned  the  cotton.  With  the  bagging  thus  obtained,  after  cutting 
^„Q.,-|  out  the  owner's  brands,  he  patched  *the  bales  and  had  them  re- 
-'  marked  W.  P.  by  Dryden,  one  of  his  hands.  He  then  directed 
Garner  to  deliver  the  cotton  to  Hume,  at  his  lauding  on  the  river,  and 
to  say  that  a  steamer  would  be  sent  for  it  by  Snowden — which  was  accord- 
ingly done,  and  the  cotton  sold  and  the  proceeds  paid  over  to  Dryden, 
who  was  sent  by  the  defendant  to  receive  it.  After  Garner  was  brought 
to  the  jail  of  Orangeburg,  as  a  witness,  the  prisoner  told  him  he  was 
owing  him  a  good  deal  of  money,  and  if  he  would  swear  to  suit  him,  or 
do  as  he  was  desired,  he  and  his  brother  would  make  him  up  $300  ;  if 
he  (lid  not,  he  (Tlmrston)  would  put  him  in  Williamsburg  jail. 

The  jury  were  instructed,  that  to  be  a  larceny,  of  which  the  prisoner 
could  1)0  convicted,  there  must  be  a  taking  and  carrying  away  of  the 
goods  liiid  in  the  indictment,  with  a  felonious  intent,  in  the  district  of 
Oran(/t'bi(r(/.  The  possession  was  delivered  to  the  prisoner  as  a  carrier, 
and  if  when  he  received  the  cotton,  he  intended  to  carry  and  deliver  it  to 
the  consignee,  then  his  subsequent  fraudulent  appropriation  of  the  cotton 
to  his  own  use  could  not  n)iike  him  guilty.  But  if,  when  it  was  delivered 
to  him,  he  reccired  it  xoUh  the  intention  of  stealing  it,  then  it  was  a 
larceny  from  the  beginning,  as  laid  in  Orangeburg  district. 

The  jury  found  the  j)risoner  guilty  of  petit  larceny. 

In  the  other  cases,  the  larceny  charged  in  each  arose  out  of  the  same 
transaction,  but  was  of  different  parcels  of  cotton  belonging  to  dilforeut 
l)ersons. 

The  prisoner  relied  on  the  previous  conviction  in  bar  of  these 
indictments,  and  contended  that  the  whole  affair,  though  consisting  of 
the  cotton  of  various  owners,  was  only  one  larcery.  The  court  thought 
otherwise.  Tlie  evidence;  alieady  reported  was  given  in  them,  and  the 
prisoner  convicted  in  each  of  the  other  two  cases  of  petit  larceny. 


^383] 


STATE   VS.    THURSTON".  593 


The  prisoner  moved  for  a  new  trial  in  all  the  cases  : 

1st.  Because  no  larceny  was  proved  ;  the  evidence  making  out  only  a  breach 
of  trust. 

2d.  Hi'canse  the  larceny,  if  any,  was  committed  not  in  Orangeburg  but  ia 
Charlest(m  district. 

And  in  the  second  and  tliird  cases  especially,  on  the  following  ground: 

*od.  Because  his  Honor  ciiarged  the  jury  that  the  prisoner  was  liable  r*.iQj 
to  be  convicted  under  tlie  two  latter  indictments,  after  conviction  under  L  '^ 
the  first,  notwithstanding  it  was  proved   that  the  goods  stolen,  although  the 
several  property  of  tliree  different  individuals,  were  at  one  and  the  same  time, 
and  by  one  and  tlie  same  act,  appropriated  by  the  prisoner. 

4tli.  Because,  in  all  the  cases,  there  is  a  difference  between  the  allegata  and 
probata,  not  described  as  one  transaction. 

And  the  pri-oner  further  gives  notice,  that  a  motion  will  be  made  to  set 
aside  the  convictions  in  the  two  latter  cases,  as  irregular  and  void. 

Northrop,  for  the  motion,  said — The  first  and  second  grounds  of  appeal  are  for 
error  in  thi'  charge  of  his  Honor  the  presi<ling  Judge. 

The  tliird  ground  may  not  have  been  presented  in  proper  technical  form  at  the 
trial,  but  it  is  ai)prehended  tliat  this  circumstance  will  not  affect  the  decision  of 
the  Court,  as  tlie  question  tlierein  considered  can  be  determined  without  n-ference 
to  the  mode  in  which  it  is  introduced,  tshould  tliis  be  deemed  an  objection,  how- 
ever, it  may  be  rectified  by  supposing  that  special  pleas  in  bar  of  auterfois  'convict 
to  the  second  and  third  indictments  were  pleaded,  with  an  averment  in  each  to 
the  same  effect,  as  stated  in  tlie  said  tliird  ground  of  appeal ;  and  that  thereupon 
his  Honor  overruled  the  said  special  pleas,  ruling  that  the  said  indictments  were 
good,  and  that  the  offences  cliarged  in  each  of  them  were  distinct  and  not  the 
same.  The  fourth  ground  appears  to  be  only  a  general  conclusion  froni  the  pre- 
ceding, and  need  not  be  particularly  referred  to. 

I.  As  to  the  first  ground  of  appeal,  I  consider  that  a  larceny  was  proved  by  the 
evidence.  It  is  important,  however,  to  ascertain  at  what  time  and  in  wliat  place 
the  original  bailment  by  the  owner  to  the  prisoner  (which,  being  a  lawful  deliv- 
ery, rendered  the  first  taking  and  subsequent  possession  lawful)  was  determined. 
From  the  report  of  his  Honor,  it  appears  that  the  prisoner  received  the  several 
parcels  of  cotton  from  their  respective  owners,  with  directions  from  them,  and  by 
contract  with  them,  that  the  cotton  should  be  delivered  in  Charleston  to  their 
several  factors.-  Did  the  prisoner  at  this  time  so  take  the  goods  "  of  ano-  r^^ooE 
ther,"  {^'res  aliena,"  in  tlie  language  of  Bracton,)  as  would  support  the  '- 
words  of  the  indictment  felonice  cepit  i  Bracton  and  Lord  Coke  will  be  deemed 
authority.  In  3  Inst.,  chap.  47,  p.  107,  the  definition  of  larceny  is  given  from 
the  former:  '•'■Et  sciendum  qnnd  fiirtum  est,  secundum  leges,  contrectatio  rei  alienee 
fraudulentii,  cum  animo  furandi  invito  illo  domina  cujuf!  res  ilia  J'uerat.'^  In  explica- 
tion of  which.  Lord  Coke  says,  '\first,  it  must  be  felonious,  id  est  cum  animo  fu- 
randi, as  hath  l)een  said  ;  an<l  this  intent  to  steal  must  be  when  it  cometh  to  his 
hand  or  po.-session  ;  for  if  he  hath  the  possession  of  it  once  lawfully,  though  he 
hath  «;(/w((//t/'«/-aMr/i  afterward,  and  carrieth  it  away,  it  is  no  larceny;  but  this 
reeeiveth  some  distinction,  as  hereafter  shall  appear.  Secondly,  it  must  be  an 
actual  taking,  for  an  indictment  quod  felonice  abduxit  equm,  is  not  good  because  it 
wanteth  cepit.  By  taking,  and  hot  bailment  or  delivery,  for  that  is  a  receipt  and 
not  a  taking  ;  and  thereupon  agreeth  Glanvill,  ^Furtum  non  est  uhi  initium  habet 
ddentionis  per  'dominnm  rei/ 

"  But  herein  the  law  doth  distinguish,  for  if  a  bale  or  pack  of  merchandise  le 
delivered  to  one  to  carry  to  a  certain  place,  and  he  goeth  away  with  the  whole 
pack,  this  is  no  felony  ;  but  if  he  open  the  pack  and  take  any  thing  out  animo 
furandi,  this  is  larceny  ;  likewise  if  tlie  carrier  carry  it  to  the  jilace  appointed, 
and  alter  take  the  whole  pack  animo  furandi,  this  is  larceny  also  : — for  the  delivery 
has  taken  its  etfect  and  tie  priviti/  of  the  bailment  is  determined." 

1  have  quoted  the  language  of  Lord  Coke  at  length,  because  the  law  respecting 
larceny  in  cases  of  bailment,  is  here  laid  down  in  the  simplest  and  clearest  terms. 
Larceny  is  a  crime  against  the  dominium  or  lawful  possession  of  personal  goods ;  a 
bailment  is  the  lawful  delivery  of  ^oods  by  the  bailor  having  the  lawful  possession 

Vol.  1.— 39 


594  COLUMBIA,    MAY,    1842.      YOL.  II.  [*385 

of  tliem  to  another,  whOs£  possession  is,  -therefore,  lawful,  and  while  the  bailment 
continues,  the  bailee  can  never  be  said  to  liave  taken  felonice  et  invito  domino.  The 
bailee  could  not  be  guilty  of  larceny  of  the  goods,  because  initium  detentionis  was 
per  dominum  rie.  The  bailment  may  be  determined,  either  by  the  special  puii^ose 
^oo  ■!  for  which  the  *goods  were  delivered  to  the  carrier  being  performed, — as 
-'  when  they  are  delivered  at  the  place  agreed  on  by  the  bailor  and  bailee, — or 
where  the  bailee  commits,  pending  the  bailment,  some  tortious  conversion  of  the 
goods  in  his  charge.  The  technical  reason  of  the  rule  seems  to  be  that  the  pos- 
session of  the  bailee  is  in  the  nature  of  a  trust,  which  attends  the  bailment  so 
long  as  it  continues  according  to  the  directions,  of  the  bailor.  The  'bci\lor  trusts 
the  bailee  that  he  shall  carry  his  goods  to  a  certain  place  ;  if,  in  tlie  first  instance, 
the  bailee  performs  the  contract,  the  trust  is  executed,  and  the  bailee  being  no 
longer  a  trustee,  the  whole  property  and  interest  in  the  goods  are  in  the  owner, 
an.lthe  possession  of  chattels  following  the  ownership,  they  are  considered  in  his 
lawful  possession  ;  if,  therefore,  the  carrier,  or  any  one  else,  take  them,  the  per- 
son so  taking  may  be  said  to  take  the  jaersonal  goods  of  another  (alieni)  out  of 
his  possession.  If,  in  the  second  instance,  the  bailee  tortiously  convert  the  goods, 
by  breaking  open  a  package,  severing  a  part  from  the  wliole,  or  doing  any  thing 
to  the  goods  inconsistent  with  his  relation  of  trustee,  he  is  considered  as  ter- 
minating the  trust,  and  with  the  termination  of  the  trust,  all  his  interest  and 
special  property  in  the  goods  which  were  the  subject  of  the  trust ;  whereupon, 
as  above,  the  property  in  the  owner  becomes  absolute,  the  possession  entirely  in 
him,  and  if  the  carrier  or  any  one  else  take  them,  the  person  so  taking  may  be 
said  to  take  tlie  personal  goods  of  another  {alieni)  out  of  his  possession  ;  whereas, 
if  the  bailee,  pending  the  trust,  carries  off  the  goods  without  any  termination  of 
it,  either  by  its  execution  or  infraction,  he  is  only  guilty  of  breach  of  trust,  for 
having  the  special  projjerty  and  lawful  possession  as  trustee,  he  cannot  be  said 
to  take  the  personal  goods  of  another  (alieni)  out  of  his  possession.  This  expli- 
cation of  the  rule  is  rendered  more  manifest  by  what  Lord  Coke  says  of  "the 
diversity  between  a  possession  and  a  charge  ;  for,  when  I  deliver  goods  to  a  man, 
he  hatli  possession  of  the  goods,  and  may  have  an  action  of  trespass,  or  an  ap- 
peal, if  they  be  taken  or  stolen  out  of  his  possession  ;  but  my  butler  or  cook, 
that  in  my  house  hath  charge  of  my  vessel  or  plate,  hath  no  possession  of  them, 
nor  shall  have  an  action  of  trespasse,  or  an  appeale,  as  the  bailee  shall ;  and, 
^oc-1  therefore,  if  they  steal  the  plate  or  vessel,  it  is  larceny." — 3  Inst.  *108.  In 
-'  1  Hale's  Pleas  of  the  Crown,  p.  504,  and  1  Hawk.  ch.  33,  sees.  5  and  7,  the 
same  positions  are  distinctly  laid  down;  and  Hale  uses  the  words,  "and  the 
taking  afterwards  is  a  new  taking."  The  reason  of  this  distinction  is  sufficiently 
manifest,  independently  of  technical  considerations,  for  when  a  person  receives 
goods  from  anotlier  who  voluaitarily  places  them  in  his  charge,  he  is  merely  a 
passive  agent — he  commits  no  overt  act  by  which  his  fraudulent  intention  is 
evinced.  If  the  person  so  receiving  is  a  common  carrier,  he  is  to  be  regarded  as 
merely  engaged  in  his  usual  avocation,  and  certainly  not  of  practising  upon  the 
conlMcnce  of  others  by  false  pretentions.  The  bailor  is  bound  to  exercise  proper 
can^fulness  in  his  selection  of  the  bailee,  and  relies  upon  his  general  character. 
Hence  L<ird  Coke's  distinction  between  receipt  and  taking,  is  wise  as  well  as  legal, 
and  sliould  always  be  strictly  ol)S('rved  in  charging  a  jury  on  the  legal  character 
of  farts  upon  Mliidi  depend  a  criminal  accusation. 

'i'lie  question  heie  considered  is  fully  and  elaborately  discussed  in  East's  Crown 
Law,  U  vol.  p.  (iUo,  ch.  xvi.  sec.  115,  where  several  cases  are  examined,  He  says 
"Tliere  are,  however,  some  tortious  acts  before  the  regular  completion  of  a  con- 
tract on  which  goods  are  dehvercd,  whicli  may  determine  the  privity  oi  it,  and 
amount  in  law  to  a  new  taking  from  the  possession  of  the  owner."  He  refers  to  a 
case  reported  in  Kelynge's  Reports,  pp.  81  and  82,  which  he  considers  "as  putting 
th('  principle  on  a  far  different  footing,"  and  concludes  his  observations,  (p.  697,) 
til  us  : 

"  Jhit  all  other  writers,  as  far  as  I  can  find,  have  put  this  case  upon  the  same 
footiiig  as  Lord  Hale,  namely,  that  the  privity  of  contract  is  determined  by  the 
act  of  breaking  tlie  package,  which  makes  him  the  trespasser;  in  which  tlie  taking 
tht!  wliole  or  ].ait  of  the  contents,  makes  no  difference,  as  some  have  supposed." 

fcitarkic,  part  iv.,  pp.  837,  83»,  and  Note  x.  (to  be  cited  at  length.) 


^387] 


STATE    rs.    THURSTON"  595 


It  is  clear,  that  when  the  several  parcels  of  cotton  were  delivered  by  the  owners, 
and  receiced  by  the  prisoner,  he.  did  not  at  that  time  filonice  cc.jnt  it  ayiortaoit  rem 
alleiuim  cum  aitimo  farandi  invito  illo  domino  cujns  rns  ilia  fwrut.  it  is  also  clear, 
that  if  lie  be  gnilty  of  larceny,  ho  is  so  because  he  terniinatiid  the  privity  r^-joo 
of  the  contract  of  bailment  between  himself  and  tlie  owners,  by  the  tortious  '■ 
conversion  of  the  cotton,  whereby  he  became  a  trespasser,  ami  there  was  a,  new 
t'lLiiiff ; — the  new  taking  and  trespass  were  immediately  after  the;  conversion,  and 
]iu  did  at  that  time  "  feloniously  take  and  carry  away  the  personal  goods  alieni,^^ 
and  was  guilty  of  larceny.     And  I  will  proceed  to  the  second  ground. 

II.  If  then  it  be  true,  as  laid  down  in  East's  Pleas  of  the  Crown,  p.  69(5,  that 
"to constitute  larceny,  there  must  be  an  uidawful  taking  and  trespass,  and  up  to 
the  moment  of  his  parting  with  the  whole  package  his  poss(!Ssion  is  lawful,  and 
he  has  no  unlawful  possession  afterwards,  whereby  to  constitute  a,  new  takinif,  un- 
less he  break  the  package  or  some  part  of  the  comnaodity  from  the  rest  while  it 
continues  in  his  possession" — if  it  be  true  that  the  unlawful  taking  or  trespass 
was  committed  immediately  after  the  prisoner  converted  the  cotton  to  his  own  use, 
and  thereby  terminated  the  bailment  and  his  special  property  therein  as  trustee 
for  the  owners  ;  then  the  larceny  was  not  committed  be/ore  this  tortious  conver- 
sion occurred,  and  it  follows,  either  that  there  was  no  larceny,  or  that  it  was 
committed  at  Euchaw  creek,  in  Charleston  district. 

The  prisoner,  therefore,  should  have  been  tried  in  Charleston  district,  and  the 
jury  should  have  been  charged  that  the  offence  being  laid  to  be  in  Orangeburg 
ilistrict,  and  proved  to  have  been  committed  in  Charleston  district,  the  prisoner 
was  entitled  to  his  acquittal.  The  law  is  so  well  settled,  that  1  will  only  refer  to 
Hawkins'  Pleas  of  tin-  Crown,  book  2,  ch.  25,  sec.  35,  as  follows:  "But  of  what- 
soever nature  an  ofl'ence  indicted  may  be,  whether  local  or  transitory,  if  upon  not 
guilty  jjleaded,  it  shall  appear  that  it  was  committed  in  a  county  diftercnt  from 
that  in  which  the  indictment  was  found,  tlie  defeildant  shall  be  acquitted  ;"  and 
to  Thomas'  Case,  in  3  Leach's  Crown  Laws,  634,  "All  offences  must  be  tried  in 
the  proper  county  where  they  are  committed. ' '  The  prisoner  is  entitled  to  his 
acquittal  on  every  of  the  indictments,  preferred  against  him  in  Orangeburg 
district. 

Every  question  in  this  case  may  be  considered  as  depending  on  the  settle- 
ment of  'the  doctrine,  either  as  laid  *down  in  East  and  Starkie  above  r*o^Q 
cited,  or  as  st;\ted  in  Kelynge's  Reports,  which  is  as  follows  : 

"The  c;ise  was,  one  bargained  with  another  to  carry  some  packs  of  goods  for 
him  to  Southampton,  and  delivereth  the  goods  to  the  carrier,  and  he  taketh 
them  and  carries  them  to  anotlicr  place,  and  there  opens  the  packs,  and  takes 
the  goods  and  disposes  of  them  to  his  own  use,  and  the  question  was  whether 
that  was  felony  or  not ;  and  though  it  was  objected  the  goods  were  bailed  to  the 
carrier,  and  therefore,  there  could  be  no  felony,  that  was  agreed  generally  to  be 
good  law.  And  it  was  also  objected,  that  an  indictment  against  one  that  he 
J'elonice  asportavit  such  goods,  is  not  good,  but  it  must  be  felonice  cepit  and  as- 
portarit,  and  in  that  case  the  taking  was  lawful ;  yet  it  was  resolved  that  it  was 
felony,  because  his  subsequent  act  of  carrying  the  goods  to  another  place,  and 
there  opening  of  them  and  disposing  of  them  to  his  own  use,  declareth  that  his 
intent  originally  was  not  to  take  his  goods  upon  the  agreement  and  contract  of 
the  party,  but  only  with  a  design  of  stealing  them." 

,  Here  the  decision  was  correct,  and  the  reasons  given  "because  his  subsequent 
act  of  carrying  the  goods  to  another  /jlace,  and  there  opening  of  them  and.  dispos- 
ing of  them  to  his  oxen  uae,"  would  have  sustained  the  conclusion  that  the  bail- 
ment was  determined,  and  that  there  was  then  a  new  taking  and  trespass  ;  and  the 
fraudulent  intent  being  manifest,  the  larceny  was  complete.  The  doctrine  of  "  tlie 
carrier's  case,"  as  it  is  termed,  has  become  settled,  and  has  been  repeatedly 
recognized  in  all  criminal  courts  governed  by  the  English  Law.  It  is  the  pivot 
of  this  case,  and  must  be  either  now  confirmed  or  abolished.  It  cannot  be  said 
that  the  question  of  intention  was  altogether  for  the  jury,  and  that  by  their 
verdict  it  has  been  disposed  of.  This  doctrine  should  have  been  expounded  to 
them,  and  they  should  have  been  charged  that  according  to  the  decided  cases, 
and  the  facts  in  evidence,  the  crime  was  not  proven  to  have  been  committed  in 
Orangeburg  district,  but  at  the  place  where  the  new  taking  occurred,  and  the 
trespass  was  committed. 


596  COLUMBIA,    MAY,    1842.      VOL.  IL  [*389 

Tlie  third  ground  also,  respecting  which  his  Honor  distinctly  rnled  that  there 
■were  as  many  larcenies  as  there  were  ou-ners  of  the  goods  stolen,  is  also  inti- 
*Qtim  niat»-ly  connected  ■  with  the  above  doctrine;  for  if  the  larcenies  were  com- 
-'  niitted  when  the  prisoner  received  the  cotton,  then  the  ruling  of  his 
Honor  was  altogether  obiter;  as  no  question  could  have  arisen  thereon.  The 
larceny  (or  larcenies,  according  to  the  dictum  of  h'H  Honor,)  was  or  were  man- 
ifested by  the  conversion  with  fraudulent  intent,  and  it  should  be  conceded  at 
least  arquendo,  that  the  criminal  acts  were  committed  u-hen  the  owner's  marks 
were  obliterated,  and  part  of  the  cotton    burnt. 

HI.  And  I  now  come  to  the  third  ground,  in  reference  to  which  I  lay  down  the 
following  propositions  : 

(<()  '•  A  crime  is  an  act  committed  or  omitted  in  violation  of  a  public  law  either 
forbidding  or  commanding  it."     Black.  Com,  iv.  p.  5.  . 

(6)  "  The  King  in  whom  centres  the  majesty  of  the  whole  community,  is  sup- 
posed by  the  law  to  be  the  person  injured  by  every  infraction  of  the  public  rights 
belonging  to  that  community,  and  is,  therefore,  in  all  cases  the  proper  prosecu- 
tor for  every  public  oifence."     Black.  Com.  iv.  p.  2. 

(c)  Crime  imports  intention,  for  '■'■actus  non  facit  reum  nisi  mens  sit  rea.^'  3 
Inst.  107. 

{d)  Larceny  is  ' '  secundum  leges  contrectaiio  rei  alienee  fraudulenta,  cum  animo 
furandiJ'  &c.     Bracton,  Lib.  3,  fol.  150.  Coke,  3  Inst.  107. 

(e)  All  moveable  things  are  either  subjects  of  property,  x)t  they  are  not. 

( /")  These  subjects  of  property  are  ^^  bona'^  in  the  language  of  the  law,  and 
are  distinguished  as  ^^  bona  conjusdam  propositi,''''  (i.  e.)  the  goods  of  a.  certain 
person  proposed,  or  bona  alieni,  (i.  e.)  of  another. 

The  terms  ^^  alieni,''  or  "of  another,"  are  used  as  opposite  to  sui,  or  of 
his  own. 

(7)  The  gist  of  the  crime  of  larceny  is  not  the  personal  wrong  to  any  indivi- 
dual, but  the  taking  and  carrj-ing  away  personal  goods  not  the  property  of  the 
thief,  with  the  intention  of  stealing  them. 

Lord  Coke,  in  his  explication  of  tliis  part  of  the  definition  "of  another"  merely 
considers  it  as  a  term  of  distinction  from  such  things,  as  being  the  property  of 
the  person  taking,  could  not  involve  him.  in  the  charge  of  larceny.  The 
^oq-i-i  *th1ngs  which  maybe  stolen,  must  be  subjects  of  property  in  sonrebody, 
-'  and  not  such  things  as  are  said  to  be  nidlim  in  bonis.  The  act  of  taking 
and  carrying  away  with  intent  to  steal,  is  the  crime  ;  and  indeed,  if  the  true  owner 
of  gdods  take  them  out  of  the  possession  of  a  carrier,  with  the  intent  to  defraud 
the  carrier  of  his  hire,  or  to  charge  him  with  their  vahie,  he  is  guilty  of  larceny  ; 
for  then  there  is  the  fraudident  taking  and  carrying  away,  wliich  constitutes  the 
crimo. 

In  the  question  of  whose  property,  it  is  only  important  to  show  that  it  was  not 
that  of  tlie  thiff,  except  where  it  becomes  a  part  of  the  description  of  the  larceny, 
and  then  for  certainti/  should  be  truly  alleged,  and  proved  as  alleged,  whether 
known  or  unknown.  The  particular  ownership  of  the  property  is  not  material  to 
the  essence  of  the  crime.  "  An  indictment  of  larceny  of  the  goods  cnjitsdam  ignoti, 
is  good,  for  it  is  the  King's  suit,  and  though  tlie  owner  be  not  known,  the  felony 
must  be  punished."  Hale's  Pleas  of  the  Crown,  1,  p.  f)12.  Indeed,  it  would 
seem  that  all  that  is  really  requisite  in  an  indictment,  is  to  describe  the  goods 
stolen  as  things  which  are  property,  and  allege  that  they  wen;  feloniously  taken  > 
for  the  alli'gation  of  stealing,  implies  that  they  did  not  belong  to  the  accused, 
and  the  irime  is  made  out  if  the  things  taken  are  described  as  chattels  of  value, 
or  proj)erty.  So  Hale  immediately  after  says,  "An  indictment  (J'kW -4  verbtrarit 
li,  and  20  jacks  prcfii  20s.  J'elonice  cepit,  &c.,  held  good  without  shewing  whose  they 
are."  JO  Henry  Vlth.  Greater  particularity  is  now  required  in  indictments,  hut 
it  is  apjiarent  tliat  tlie  private  injury  is  not  the  gist  of  the  crime,  but  the  offence 
to  tlie  sovereign  or  State,  and  wiiieh  is  prosecuted  by  public  authority. 

(h)  If  a  i)erHon  at  oik-  and  the  same  time,  at  on<>  "and  the  same  place,  and  by 
one  and  the  same  act,  stenl  the  personal  goods  of  several  different  persons,  he  has 
committed  but  one  larceny,  and  is  liable  to  but  one  indictment,  trial,  conviction 
and  sentence  tlierefor.  This  position  is  so  clear  and  well  established,  tliat  it  is 
of  rare  occurrence  to  find  ca-ses  in  wliich  the  contrary  has  been  contended.     Lar- 


*391] 


STATE    VS.    THURSTON.  597 


ceny  is  simply  the  "felonious  taking  and  carrying  away  the  personal  goods 
alieiii,'"  wliftlicr  of  one  or  ,of  many,  known  or  unknown.  Hnppo-^e  on  an  indict- 
ment for  stealing  g<>o<ls,  •the  jiiopiTty  of  a  piTSon  or  pc^rsons  unknown  to  r^oqo 
the  jury,  the  dcfeuilant  w;i-i  acquitted  or  convicteil;  suppose  tln'  goods  wt-re  '■ 
so  particularly  described  by  mar/cs  or  in  any  other  way,  that  they  could  be  desig- 
nated precisely,  although  the  ownership  was  not  known,  pretii  $10(1.  Supijose 
after  defendant's  acquittal  or  conviction,  tlie  owner  or  the  several  owners  of  tliese 
identical  goods  were  to  be  discovered,  and  defendant  was  again  indicted  for  steal- 
ing u  j>art  or  all  of  these  identical  goods — would  not  his  jtlea  of  (iiiterfois  acrptit  or 
conrirt,  on  proof  of  the  identity  of  the  goods  themselves,  be  a  sufficient  plea  in  bar  ? 

If  the  position  (A)  be  not  sound,  then,  in  this  suppo.sed  ca.se,  the  defendant 
Would  be  liahl<(  to  conviction  for  stealing,  say  "  20  Jarks  pretii  2('s."  tlie  property 
of  a  jKjrson  unknown,  and  after  being  punished  then^for,  he  might  be  convicted 
of  stealing  ^  jacks  pretii  5s.,  the  property  of  A.,  and  after  l)eing  jiunished  therefor, 
he  might  be  convicted  .of  stealing  10  Jacks  pretii  10s.,  the  projjerty  of  B.,  and 
after  being  punished  therefor,  he  might  be  convicted  of  stealing  the  remaining  5 
jacks  pretii  bs.,  the  proixerty  of  C.  ;  for  according  to  the  rule  which  was  laid  down 
at  Orangeburg,  the  indictments  hemg  all  difierent  in  their  allegations  of  owner- 
ship, the  pleas  of  auterjois  convict  would  have  to  be  overruled.  A'ow  is  it  not  evi- 
dent, that  in  each  of  the  three  last  cases  the  defendant  would  have  been  tried  for 
the  same  crinii'  for  which  he  was  convicted  iu  the  first  ? 

Tlie  whole  ditfirulty  is  occasioned  because  tlie  most  usual  mode  of  describing 
goods,  is  by  alleging  the  name  or  names  of  the  owner  or  owners  ;  and  hence 
writers,  in  illustrating  tlie  nature  of  the  pleas  of  auterfois  acquit  and  convict,  refer 
to  the  name  or  names  of  the  owner  or  owners,  as  the  dtsiynution  of  the  ffoo'ls.  It 
matters  not,  therefore,  whether  there  be  one  or  many  owners,  known  or  unknown, 
so  far  as  the  essence  of  the  crime  is  considered ;  that  consists  in  the  act  and  the 
aceompan3''ing  intent.  Suppose  gamblers  are  jdayiug  round  a  table,  and  liave 
placed  their  stakes,  undistinguishable,  as  coins  of  the  same  denomination  usually 
are.  in  a  plate  or  cup,  and  the  sum  total  of  the  stakes  were  taken  uj)  by  a  thief 
and  poured  into  his  pocket — is  it  not  clear  that  he  would  have  committed  but  one 
criminal  act  and  one  felony?  If  the  game  had  been  broken  *up,  the  players  r*oQo 
would  have  had  a  right  each  to  his  own  stake — therefore,  the  thief  took  *- 
the  property  of  different  persons,  who  we  will  suppose  are  gone  and  unknown. 
Suppose  he  had  been  indicted  for  taking  the  coins  of  a  i)erson  unknown,  and  on 
evidence  it  appeared  that  one  of  the  gamblers,  unknown  by  name,  Jiad  placed 
five  silver  dollars  in  the  plate— and  that  the  thief  had  taken  all  the  money — he 
would  be  convicted  ;  if  again  indicted  for  taking  the  coins  of  another  person  un- 
known, would  he  not  show  that  he  had  been  convicted  for  tJie  act  of  stealing  all 
the  coins, — for  those  he  stole  were  undistinguishable, — and  that  he  could  not  be 
tried  more  than  once  for  this  olfence  .'  It  is  as  liard  to  prove  this  position,  as  it 
is  to  demonstrate  an  axiom  in  mathematics.  Probably  authority  is  better  in 
such  a  case  than  reasoning. 

Let  it  be  reniemljered  that  grand  and  petit  larceny  are  of  the  same  nature, 
dittering  only  in  the  r«/«e  of  the  thing  stolen. 

Hale,  Pleas  of  the  Crown,  vol.  1st,  p.  r>31,  says,  "If  at  the  same  time  he  steals 
goods  of  A.  of  the  value  of  sixpence,  goods  of  B.  of  the  value  of  sixpence,  and  goods 
of  C.  of  the  value  of  sixpence,  being  perchance  in  one  bundle  or  upon  a  table,  or  in 
one  shop,  this  is  grand  larceny,  because  it  was  one  entire  felonij  done  at  the  same  time 
though  die  persons  Iiad  sereral  properties.''^ 

East's  Pleas  of  the  Crown,  p.  934,  in  the  case  of  Rex  vs.  TJiomas,  "on  a  count 
for  uttering  several  forged  receipts,  the  court  will  not  put  the  prosecutor  to  his 
election  on  which  receipt  to  proceed,"  "as  the  receiiits  were  charged  to  have  been 
uttered  at  one  and  the  name  time,  and  might  constitute  only  one  ofience  of  uttering 
many  forged  receipts.  And  accordingly  it  was  proved,  that  the  several  receipts 
there  stated  were  forged,  and  were  uttered  at  one  and  the  same  time  in  one  bundle 
by  the  prisoner." 

Leachs  Crown  Laws,  vol.  1st,  p.  538.  Doran's  case,  per  Chief  Baron  Eyre, 
"thi'  grand  jury  cannot  with  propriety  find  two  indictments  for  the  same  offence 
at  the  same  time." 


598  COLUMBIA,    MAT,    1842.      VOL.  IL  [*393 

Burrows'  Reports.  Bex  vs.  Benfield  Sf  Saunders,  980.  This  case  arose  under  an 
information  filed  for  a  libel  upon  several  personx.  The  court  "  looked  upon  this  to  be 
^  one  oftence  ;  the  gist  of  the  charge  is  singinq  of  these  songs  in  the  *  manner 

J  and  with  the  intent  charged  in  the  information." 

In  Thnrston"s  case,  the  gist  of  the  charge  is  the  taking  and  carrying  away  of 
the  goods  with  the  intent  charged  in  the  indictment. 

I  presume  it  will  be  conceded,  that  if  the  felonious  taking  and  carrying  away 
the  pei-sonal  goods  of  several  persons,  is  a  distinct  offence  of  larceny,  it  cannot  at 
the  same  time  be  contended  that  it  is  a  distinct  larceny,  and  also  sei-eral  larcenies. 
It  would  be  like  the  evil  spirit  whose  name  was  Legion,  because  he  was  many.  It 
is  a  rxile  that  "every  count  should  charge  the  defendant  as  if  he  had  committed  a 
distinct  offence;"  yet  the  first  form  of  indictment  for  larceny  in  Ghitty's  Criminal 
Law,  vol.  3,  p.  950,  charges  as  one  larceny  the  stealing  of  several  different  articles 
of  pro{.erty  belonging  to  different  persons.  The  position  now  contended  for  is  not 
only  reasonable  as  a  logical  deduction  from  the  terms  of  the  law,  and  established 
by  the  highest  authority,  but  its  converse  would  be  iniquitous,  and  contrary  to 
the  spirit  of  our  laws.  When  penalties  and  punishments  are  prescriixnl,  they  are 
considered  as  rods  in  the  hands  of  the  Roman  Lictors,  to  be  used  by  command  of 
the  Magisti-ate,  and  not  at  the  caprice  or  enmity  of  a  revengeful  prosecutor.  Can 
it  be  endured,  that  in  such  a  case  as  this,  it  shall  be  optional  with  the  prosecutor 
and  Solicitor,  whether  the  prisoner  shall  be  subject  to  one  or  several  trials  and 
accumulated  punishments?     Common  sense,  law  and  huuianity,  are  all  opposed. 

It  seems  unnecessary  to  make  any  ai>plication  of  the  points  discussed  to  the 
facts  of  the  present  case,  as  their  relevancy  is  apparent. 

Edwards,  Solicitor,  conti-a,  did  not  argue  the  case  in  the  Appeal  Court. 

Curia,  per  O'Xeall,  J.  The  first  and  second  grounds,  ap])]yinfj:  to 
all  th^  cases,  will  be  considered  first,  and  together.  For  if  the  convic- 
tions are  good,  it  is  upon  the  ground  that  the  prisoner,  when  he  received 
the  cotton,  in  Orangeburg,  intended  to  steal  it,  and  afterwards  consum- 
*qnR-i  mated  that  act.  There  is  no  doubt,  as  was  said  to  the  jury,  *if 
-'  the  prisoner  received  the  cotton,  with  the  intention  of  carrying 
and  delivering  it,  according  to  his  contract,  and  afterwards  changed  his 
mind  and  fraudulently  appro|)riated  it  to  his  own  use,  he  would  not  have 
been  guilty  of  a  hirceny  in  Orangeburg  district.  It  has  been  conceded 
here,  that  the  act  done  at  Euchaw  creek,  in  Charleston  district,  was  a 
plain  laicetiy;  and  the  otdy  question  is,  whether  the  jury  were  at  liberty  to 
ascribe  the  Iteginning  of  the  felonious  intent  to  the  time  at  which  the 
prisoner  received  the  cotton.  It  is  plain  from  Garner's  testin>ony,  tliat 
on  the  voyage,  and  l)efore  he  reached  iMichaw  creek,  the  prisoner  commu- 
nicated to  him  the  scheme  of  appropriating  the  cotton  to  his  own  use. 
This,  from  any  thing  which  ajipears,  might  have  been  in  Orangeburg 
district,  and  is  enough  to  sustain  the  verdicts.  But  I  have  no  disposition 
to  evade  the  question.  For  I  iiold  that  tiie  jury  were  at  liberty  to  infer, 
from  the  feh>nious  intent  'manifested  at  Eiu-haw  creek,  where  the  prisoner 
first  Ijroke  Ijulk,  burned  three  bales  of  his  load,  and  altered  the  marks  of 
the  others,  and  .sent  on  the  cotton  to  a  different  consignee,  under  a  false 
name,  that  he  received  the  cotton  intending  to  steal  it;  and  when  they 
came  to  that  conclusion  in  fact,  they  did  right  in  finding  him  guilty  in 
Orangeburg  (li>trict.  In  the  ^late  vs.  Pleasant  Gorman,  (2  N.  &  McG. 
1)0,)  .Judge  .loluison  stated  the  law  to  be  that  "whatever  might  have 
bcL-n  the  old  rule  on  the  snl)ject,  there  can  be  no  question  that,  at  this 
day,  a  larceny  may  be  commitled  of  goods  obtained  by  delivery,  from  the 
owner,  if  done  animo  furandi.''^  In  another  part  of  the  case,  he  states 
the  ellect  of  the  verdict  to  be  conclusive  of  the  question  of  the  prisoner's 


*395]  STATE   VS.    TnURSTON".  599 

intent  in  receiving:  the  floods.  For  he  says,  "tli-at  the  prisoner  {?ot  pos- 
session of  the  horse,  with  tlie  stealing  of  which  he  is  charged,  with  a  felo- 
nious intention,  is  determined  by  the  verdict  of  guilty."  Putting  these  two 
principles  together,  it  is  plain,  that  where  the  jury  have  evidence  which 
may  or  may  not  bring  them  to  that  conclusion,  they  have  the  right  to  say, 
from  all  the  facts,  whether  the  felonious  intent  existed  eo  inHtanti,  at  the 
reception  of  the  goods,  or  arose  afterwards.  Tiiis  view  has  the  sanction 
of  a  very  eminent  criminal  lawyer.  Archbold's  Criin.  Plead.  187,  lays 
down  the  law  as  follows:  "  If  A.  obtain  goods,  animo  furandi,  or  receioe 
them,  *ha7-boring,  at  the  time,  an  intention  wronrifuUy  to  convert  r^jconp 
them  to  Jris  oivn  ufte,  it  is  larceny.  Thus  where  the  defendant  L 
was  employed  to  drive  sheep  to  a  fair,  but  instead  of  driving  them  to  the 
fair,  he  drove  them  in  a  contrary  direction,  and  sold  ten  of  them  on  the 
morning  he  received  them,  and  the  jury  were  of  opinion  that  at  the  time 
he  received  tliem,  he  intended  to  convert  them  to  his  own  use  :  this  was 
field  to  be  larceny.''^  This  comes  uj)  so  fully  to  the  cases  before  us,  that 
I  will  not  pursue  this  part  further.  The  remaining  ground  only  applies 
to  the  two  cases  last  tried  and  will  now  be  considered.  It  must  be  tested 
under  the  plea  of  auterfois  coyivict.  The  same  rules  apply  to  it,  as  to 
the  plea  of  auterfois  acquit.  Archbold's  Grim.  Plead.  88,  speaking  of 
the  plea  of  auterfois  acquil,  says,  "the  true  test  by  which  the  question, 
whether  such  a  plea  is  a  sufficient  bar  in  any  case  may  I^e  tried  is,  whether 
the  evidence  necessary  to  support  the  second  indictmeiit,  would  have 
been  sufficient  to  procure  a  legal  conviction  upon  the  first."  Inquire 
under  this  rule  whether  the  evidence  under  the  second  and  third  cases, 
could  have  produced  a  conviction  under  the  first?  It  is  plain  it  could 
not.  For  in  it,  the  stolen  cotton  is  charged  to  be  the  property  of 
"VYilliam  Theus.  In  the  second  and  tliird,  the  cotton  is  laid  as  the 
respective  property  of  Mack  &  Fogle.  The  property  must  be  proved, 
as  hiid,  or  there  can  be  no  eonviction.  Hence  the  proof,  in  this  respect, 
must  be  different  in  each  case  ;  and  therefore,  the  plea  could  not  be  sus- 
tained. In  The  State  vs.  Ryan  &  Jones,  (4  McC.  16,)  the  property 
stolen  was  laid  to  be  the  "goods  and  chattels  of  A.  B.  &c."  It  appeared 
that  a  part  belonged  to  A.,  a  part  to  B.,  and  a  part  to  C.  ;  it  was  held 
that  the  proof  did  not  sustain  the  allegation.  That  case  not  only  sus- 
tains the  position  which  I  have  already  laid  down,  but  that  the  stealing 
of  the  goods  of  different  persons  is  always  a  distinct  larceny, (o)  or  may 
at  lead  be  so  treated  by  the  S'dicitor,  if  in  his  discretion  he  thinks  projjer 
so  to  do.  The  only  authority  which  has  been  cited  for  the  contrary  posi- 
tion, is  that  from  1st  Hale's  P.  C.  531.  That,  when  examined,  will  be 
found  to  amount  to  no  more  than  this,  that  several  petit  larcenies  on 
different  days  of  the  goods  of  A.  ;  or  of  the  goods  of  A.  B.  ct  C  ,  if  com- 
mitted by  one  and  the  same  act,  may,  in  order  to  make  *oul  r+ooT 
the  higher  ojTence  of  grand  larceny,  be  joined  in  one  indictment.  '- 
The  first  position  laid  down  by  that  great  Jndge  and  good  man,  Sir 
Matthew  Hale,  is,  "If  A.  steals  the  goods  of  B.,  to  the  value  of  Qd.,  and 
at  another  time  to  the  value  of  8d.,  so  that  all  put  together  exceeds  the 
value  of  \2d.;  yet  this  is  held  grand  larceny,  if  he  be  indicted  of  them 
altogether."     The  result,  by  the  authority,  is  made  to  depend  upon  the 

(rt)  See  State  vs.  JloUand,  5  Rich.  517.     An. 


600  COLUMBIA,    MAY,    1842.      VOL.  11.  [*397 

oflfences  being  united  in  one  indictment.  It  is  therefore  not  opposed  to 
the  view,  tliat  for  tlie  goods  of  B.,  stolen  at  different  times,  different 
indictments  wonid  lie.  Again,  he  says,  ''it  fieems  to  me,  that  if  he  (the 
prisoner)  steals  goods  of  A.  of  the  value  of  Gel,  goods  of  B.  of  the  value 
of  tirf.,  and  goods  of  C.  of  the  value  of  Qd  ,  being  perchance  in  one  bundle, 
or  upon  a  table,  or  in  one  shop,  this  is  grand  larceny,  because  it  is  one 
entire  felony,  at  the  same  time,  though  the  persons  had  several  proper- 
ties, and  therefore  if,  in  one  indictment,  they  make  grand  larceny." 
This  qualification  again  shows,  that  by  treating  the  different  larcenies  as 
one  act,  they  become  one  offence.  But  I  apprehend  that  it  never  entered 
into  the  head  of  the  learned  Judge,  that  each  of  these  could  not  be 
regarded  as  separate  jjetit  larcenies.  .  For  that  would  be  in  favor  of  the 
prisoner,  and  hence,  if  separated  by  the  solicitor,  the  Court  would  have 
regarded  them  according  to  their  intrinsic  character  So,  if  they  had 
been  grand  larcenies,  an  indictment  would  have  laid  for  each  ;  and  an 
acquittal  in  one,  would  not  have  barred  the  others.  But  the  moment  a 
conviction  took  place  in  one,  it  plight  have  suspended  the  others,  and  if 
clergy  had  been  allowed  and  the  judgment  of  branding  had  been  executed, 
then  that  operating  as  a  statute  pardon,  would  have  discharged  the 
prisoner  from  the  other  indictments. (a)  2  Hale's  P.  C.  254. 
The  motions  in  all  the  cases  are  dismissed. 

Richardson,  Evans  and  Butler,  JJ.,  concurred. 

Earle,  J.,  dissenting.  I  am  not  satisfied  with  this  conviction.  It  is 
the  case  of  a  common  carrier,  to  whom  goods  have  been  delivered  to  be 
carried  to  a  certain  place,  and  who  thereby  acquired  a  special  property 
and  a  legal  possession.  To  make  the  taking  in  such  case  before  the  goods 
^„Qg-|  are  brought  to  the  place  of  delivery  larceny,  it  *shonld  be  proved 
-^  that  the  delivery  was  fraudulently  j^i'ociired,  with  a  felonious 
intent  to  convert  the  property  so  acquired.  Such  I  have  always  under- 
stood the  law  to  be  ;  and  such  is  stated  by  Mr.  East,  in  his  Pleas  of  the 
Crown,  2  E.  P.  C.  393,  to  be  the  result  of  all  the  eases.  "  It  is  to  be 
collected  from  them,"  says  he,  "that  if  a  person  obtain  the  goods  of 
another  liy  lawful  delivery,  without  fraud,  although  he  afterwards  convert 
them  to  his  own  use,  he  cannot  be  guilty  of  felony.  As  if  a  tailor  have 
cloth  delivered  to  him,  to  make  clothes  with  ;  or  a  carrier  receive  goods 
to  carry  to  a  certain  place,  <fec.  But  if  such  delivery  be  obtained  by  any 
falsehood,  or  fraud,  and  with  an  intent  to  steal,  though  under  the  pretence 
of  a  hiring  or  even  a  purchase,  the  delivery  in  fact  by  the  owner  will  not 
pass  the  legal  possession  so  as  to  save  the  ])arty  from  the  guilt  of  felony." 
The  case  of  Gorman,  (2  N.  &  McC.  90,)  who  by  falsehood  and  fraud 
obtained  the  delivery  of  a  horse  as  a  loan,  and  immediately  rode  off  in 
another  direction  and  sold  him,  was  one  of  this  description,  and  the  inten- 
tion to  con\ert,  manifested  by  the  falsehood  in  obtaining  possession,  made 
the  taking  larceny.  But  in  the  case  before  us,  the  cotton  was  delivered 
by  the  act  of  the  owners  to  the  prisoner,  in  the  way  of  his  ordinary  em- 
ployment, without  any  other  procurement  on  his  ])art;  without  any  falla- 
cious ap]>earaiices,  or  other  inducements  held  out  to  them  to  repose  this 
confidence  in  him.     There  is  nothing  therefore  to  distinguish  this  case 

(«)  See  Act  of  185],  12  Stat.  81. 


*398]  STATE   VS.    TURNER.  601 

from  that  of  every  otlier  carrier  who  takes  goods  entrusted  to  him,  before 
tlicy  come  to  tiie  phice  of  delivery  ;  and  then  the  hirceuy  is  complete  only 
upon  the  actual  taking,  which  dissolves  the  privity  and  constitutes  the 
larceny.  Now  whether  the  taking  by  the  prisoner  was  of  such  a  sort  at 
the  time  and  place  of  its  being  committed,  I  will  not  inquire.  JJut  1  con- 
clude from  the  rule  to  which  I  have  referred,  that  it  could  only  be  a 
larceny  in  Charleston  district,  where  the  cotton  was  converted.  The  case 
of  four  prisoners,  Barnet  and  others,  at  Worcester,  reported  in  2  Russ. 
on  Cr.  191,  was  of  a  similar  kind,  and  it  was  held  to  be  larceny  at  the 
place  of  taking.  The  case  cited  from  Kelynge,  81,  of  the  carrier  who 
carried  the  j)acks  of  goods  to  the  appointed  place,  and  opened  them  and 
took  tlie  goods,  is  there  put,  it  is  true,  upon  the  ground  of  an  intent 
*originally  not  to  take  the  goods  upon  the  agreement,  but  only  to  r-^jcooQ 
steal  them.  The  ground  of  decision,  however,  is  put  by  all  the  ^ 
other  writers  upon  a  ditferent  principle,  that  breaking  the  pjackage  dis- 
solved the  privity  and  made  him  a  trespasser.  2  E.  P.  C.  696,  697.  I 
see  nothing  in  the  proof  here  from  which  the  jury  could  infer  that  the 
cotton  was  ol)tained  with  an  intent  to  convert.  If  the  rule  adopted  by 
the  Court  be  correct,  and  the  larceny  was  committed  when  the  cotton 
was  received,  it  follows  that  each  parcel  constituted  a  difierent  oft'ence. 

See  Post,  502  ;  5  Rich.  244.     An. 


The  State  vs.  Henry  C.  Turner. 

Wherever  one  of  the  counts  in  an  indictment  for  trading  with  a  slave  is  good,  the 
court  awards  judgment  upon  it,  notwithstanding  the  other  counts  may  be  bad. 

Before  Richardson,  J.,  at  Edgefield,  March  Term,  1842. 

This  was  an  indictment  for  trading  with  Isom,  the  slave  of  Jonathan 
"Wever,  deceased,  but  under  the  care  of  J.  R.  Wever,  (son,)  and  Oliver 
Hearn,  overseer,  by  buying  two  bushels  of  wheat,  and  selling  half  a  pound 
of  coffee  and  two  pounds  of  sugar. 

Tlie  trading  was  proved,  both  by  "Wever  and  Hearn,  who  had  purposely  sent 
Isom  with  tlie  wheat  in  a  bag.  They  saw  the  bag  carried  into  the  lumber  room 
of  the  defendant,  after  it  had  been  laid  for  a  tew  minutes  by  a  fence,  and  heard 
it  poured  out — listened  to  the  conversation  between  him  and  Isom  in  defendant's 
store,  and  saw  th^'  delivery  of  the  coffee  and  sugar  by  him  to  Isom. 

On  the  other  hand:  Mays  and  Hall,  (just  after  Wever  and  Hearn  had  left  the 
premises,  and  having  been  discovered  by  Turner, )  were  sent  for  by  defendant. 
These  *witnesses  found  a  bag  of  wheat  described  as  similar  to  Isom's  lying  r*4AA 
near  the  fence,  but  very  unlike  the  wheat  in  defendant's  lumber  room,  and  '■ 
related  some  circumstances  to  indicate  that  Hearn  and  Weaver  may  have  been 
mistaken,  and  never  heard  the  wheat  poured  into  a  barrel,  as  they  supposed :  as 
Mays  and  Hall  found  no  mixed  wheats,  and  the  empty  barrels  of  tlie  lumber  room 
contained  cobwebs,  &c.     The  evidence  in  detail  is  annexed. 

Mrs.  Tomkins  and  Mrs.  Harris  also  supposed  that  Mr.  Turner  could  have  had 
no  sugar  or  coffee  for  sale  just  at  that  time,  as  they  could  not  get  those  articles  a 
day  or  two  before,  and  knew  that  Turner  replenished  with  sugar  and  coffee  shortly 
after. 

The  case  was  submitted  to  the  jury,  who  found  the  defendant  guilty. 


602  COLUMBIA,   MAT,    1842.      VOL.  II.  [*400 

The  defendant  appeals,  upon  grounds  of  fact,  which  must  be  resolved 
bv  the  evidence  ;  and  moves  also  in  arrest  of  judgment. 

'  On  this  head,  the  jury  were  instructed,  that  the  first  count  was  bad  ; 
because  it  did  not  negative  the  fact  of  Isom's  having  a  permit  from  any 
one  having  the  care  of  him.  But  that  the  second  and  third  counts  were 
good.  And,  therefore,  if  the  trading  had  been  verified  by  Wever  and 
Hearn,  to  their  conviction,  and  if  Isom  had  been  under  Hearn's  care,  as 
alleged  in  the  second  count,  or  under  Wever  and  Hearn,  as  in  the  third 
count,  they  might  find  the  defendant  guilty  accordingly. 
*401]        *  Grounds  iahen  in  arrest  of  judgment: 

1.  That  there  is  no  allegation  in  the  first  count  in  the  iuJictmeut,  that  the 

TuE  State  of  South  Cakolixa,  )    j.^  ^^•^. 

Edgefield  District.  ) 

At  a  Court  of  Sessions,  begun  to  be  holden  in  and  for  the  District  of  Edgefield, 
in  the  State  of  South  CaroHna,  at  Edgefield  Court  House,  in  the  District  and  State 
aforesaid,  on  the  third  Monday  in  October,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  fortv-one,  the  jurors  of  and  for  the  District  of  Etlgcfield 
aforesaid,  in  the  State  of  South  Carolina  aforesaid,  that  is  say : 

Upon  their  oaths  present,  that  Henry  C.  Turner,  late  of  Edgefield  District,  in 
the  said  State,  on  the  fourth  day  of  September,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  forty-one,  with  force  aud  arms,  at  Edgefield  Court 
House,  in  the  District  of  Edgefield  aforesaid,  did  buy  and  purchase,  of  and  from 
a  certain  slave,  of  the  estate  of  Jonathan  Wever,  deceased,  named  Isom,  who  was 
then  and  there  under  the  care  and  management  of  Oliver  Hearn,  two  bushels  of 
wheat  of  the  value  of  two  dollars,  the  said  Isom  then  and  there  not  having  a  per- 
mit so  to  sell,  from  or  under  the  hand  of  the  said  Oliver  Hearn,  or  from  or  under 
the  hand  of  any  person  not  having  the  care  and  management  of  said  slave ;  against 
the  form  of  the  Act  of  the  General  Assembly  of  the  said  State,  in  such  case  made 
and  provided,  and  against  the  peace  and  dignity  of  the  same  State  aforesaid. 
And  the  jurors  aforesaid,  on  their  oaths  aforesaid,  do  further  present,  that  the 
said  Henry  C.  Turner,  on  the  fourth  day  of  Septeml)er,  in  the  same  year  aforesaid, 
with  force  and  arms,  at  Edgefield  Court  House,  in  the  District  and  State  aforesaid, 
did  .deal,  trade  and  traffic,  with  a  certain  negro  man  slave  Isom,  of  the  proper 
goods  and  chattels  of  Jonathan  Wever,  in  his  lifetime,  who  was  then  deceased, 
and  which  said  slave  was  then  and  there  under  the  care  and  management  of  John 
II.  Wever,  by  selling  to  the  said  slave  Isom,  one  half  a  pound  of  cojfi  e  and  two 
pounck  of  brown  sugar,  the  said  slave  then  and  there  not  having  a  permit,  so  to 
deal,  trade  and  traffic,  from  or  under  the  hand  of  the  said  John  R.  Wever,  or 
from  or  under  the  hand  of  any  other  person  having  the  care  or  management  of 
the  said  slave ;  against  the  form  of  the  Act  of  the  General  Assembly  of  the  said 
State,  in  such  case  made  and  provided,  and  against  the  peace  and  dignity  of  the 
same  State  aforesaid.  And  the  jurors  aforesaid,  upon  their  oaths  aforesaid,  do 
further  jiresent,  that  the  said  Henry  C.  Turner,  on  the  fourth  day  of  September, 
in  tlie  same  year  last  aforesaid,  with  force  and  arms,  at  Edgefield  Court  House, 
in  the  District  and  State  aforesaid,  did  deal,  trade  and  traffic,  with  a  negro  man 
Klave  named  Isom,  who  belonged  to  Jonathan  Wever,  in  his  lifetime,  and  was 
tlien  deceased,  and  the  said  slave  was  then  and  there  under  the  care  and  manage- 
ment of  (Oliver  Hearn  and  John  R.  Wever,  by  purchasing  and  receiving  of  the 
Haid  slave  tu-n  hushels  nf  wheat  of  the  value  nftivo  dollars,  and  by  selling  and  delivering 
to  the  said  slave,  one  half  pound  of  cotl'ec  and  two  pounds  of  brown  sugar;  the 
said  slave  tln-n  and  tlierc  not  liaving  a  permit  so  to  deal,  trade  and  traffic,  from 
and  under  the  han.is  of  the  said  Oliver  Hearn  and  John  II.  Wever,  or  either  of 
tbeiii,  or  from  and  unck-r  the  hand  of  any  person  Iiaving  the  care  or  management 
of  t}ie  said  slave  ;  against  the  form  of  the  Act  of  the  General  Assembly  of  the  said 
Slate,  in  sudi  I'ase  made  and  provided,  and  against  the  peace  and  dignity  of  the 
same  State  aforesaid. 

CALDWELL,  Solicitor. 


*401]  STATE   VS.    TURNER.  603 

slave   did  not  have  a  permit  to  deal  froin   any  person  having  the  care  or 
nuiiiao-enient  of  him. 

2.  Tliat  the  third  count  is  void  for  multifariousness,  in  alleging  two  or  more 
distinct  acts  of  trading. 

3.  'IMiat  none  of  the  counts  set  forth  an  act  of  trading,  as  no  price  or  con- 
sideration is  alleged. 

4.  That  none  of  the  counts  contain  a  sufficient  description  of  the  ownership 
or  management  of  the  slave. 

Grounds  for  a  neiv  trial: 

1.  That  there  was  not  sufficient  proof  of  trading. 

2.  That  the  presumptive  proof,  under  the  Act  of  1834,  was  insufficient,  as 
the  defendant  was  not  indicted  as  a  shopkeeper. 

•  3.  That  the  description  of  the  slave  was  falsified  by  the  proof. 

WarJlaw,  for  the  motion. 
Caldwell,  Solicitor,  contra. 

Curia,  per  Richardson,  J.  Both  Hearn  and  Wever  proved  the 
trading  of  defendant  with  Isom,  directly,  by  selling  him  the  coffee  and 
sugar,  as  alleged  in  the  second  count  of  the  indictment.  And  that  Isom 
was  under  their  management.  They  also  proved,  circiimstantially,  that 
Turner  received  the  wheat  of  Isom  and  paid  him,  in  part,  with 
*coffec  and  sugar;  which  verified  the  whole  trading  charged  in  r^.n:) 
the  third  count.  The  defendant  was  not  indicted  as  a  shop-  L 
keeper,  although  it  appeared  plainly  that  he  kept  a  store.  We  cannot 
therefore,  grant  a  new  trial,  upon  the  evidence,  because  it  fully  justified 
the  verdict. 

Next,  as  to  the  motion  in  arrest  of  judgment.  The  first  count  may 
be  admitted  to  be  defective  and  bad,  for  the  reason  alleged  in  the  first 
ground  of  the  motion  in  arrest.  The  defendant  had  the  benefit  of  that 
admission,  by  the  charge  of  the  Judge  ;  and  was,  of  course,  convicted 
under  the  second  or  third  count — or  under  both.  If  one  of  them  be  good 
it  is  enough.  But  both  are  good.  The  second  alleges  Isom  to  have 
been  under  the  care  and  management  of  John  R.  Wever;  and  the 
alleged  trading  was,  in  selling  Isom  coffee  and  sugar,  without  a  permit. 
The  third  count  varies  from  the  second,  in  this — that  Isom  was  under 
the  care  and  management  of  both  Hearn  and  J.  R.  Wever  ;  and  that 
the  defendant  both  sold  Isom  the  coffee  and  sugar  and  purchased  the 
wheat  at  the  same  time.  These  acts  were  not  separate  tradings,  but 
sejiarate  parts  of  the  same  trading.  This  count  embodied  the  whole 
evidence  as  given  by  Wever  and  Hearn,  and  cannot  be  defective,  by 
stating  the  whole  trading,  as  consisting  in  the  purchase  of  one  article, 
and  the  sale  of  another.  This  third  count  included  the  second  count ; 
and  did  more,  by  alleging  that  Isom  was  under  the  care  of  Hearn,  as 
well  as  Wever  ;  and  that  the  defendant  purchased  the  wheat  as  well  as 
sold  the  coffee  and  *sugar,  either  of  which  was  a  sufficient  act  of  r^^no 
trading.  But  the  two  do  not  lessen  the  trading  There  is,  then,  '- 
no  delect  in  either  of  these  two  counts ;  and  I  need  scarcely  observe, 
that  wherever  one  of  the  counts  is  good,  the  Court  awards  judgment  upon 
it,  (1  Salk.  384  ;  1  Johns.  7,  322  ;  2  Burr.  985;  Doug.  723  ;){n)  notwith- 
standing the  other  counts  were  bad.     It  was  formerly  otherwise,  in  civil 

(a)  Sup.  122  ;  3  Strob.  341     An. 


604  COLUMBIA,   MAY,    1842.      VOL.  II.  [*403 

actions,  in  many  cases,  where  the  court  could  not  tell  but  thflt  the  jury 
had  awarded  the  damages  upon  the  bad  count.  But  never  in  criminal 
pi-osecutions,  where  the  Court  awards  the  punishment  upon  the  good 
count  alone,  (a)     This  motion  is,  therefore,  also  dismissed. 

O'Xeall,  Evans,  Earle  and  Butler,  JJ.,  concurred. 


J.  ;M.  Felder  vs    The  LonsviLLE,    Cincinnati  and  Charleston 
Railroad    Companiy. 

Where  the  slave  of  the  plaintiff,  endowed  with  ordinary  intelligence  and  acqnainted 
with  the  nature  and  manner  of  using  the  railroad,  voluntarily  laid  himself  down 
on  the  road  and  went  to  sleep,  amidst  grass  so  high  as  to  obstruct  the  view  at 
some  distance,  (over  twenty  feet  ahead,)  and  in  this  situation,  without  any  fault 
of  the  engineer,  the  engine  going  at  its  ordinary  speed,  passed  over  the  body 
and  killed  the  slave  :  It  was  held,  that  the  plaintiff  could  not  recover  against  the 
company  for  the  price  of  the  slave  killed,  under  the  circumstances,  and  ordered 
a  nonsuit. 

Before  O'Xeall,  J.,  at  Orangeburg,  Spring  Terra,  1842. 

This  was  an  action  on  the  case,  for  negligence  in  so  keeping  the  rail- 
road, that  thereby  the  locomotive  and  its  attendant  train,  belonging  to 
the  defendants,  ran  over  and  killed  a  negro  boy  belonging  to  the  plaintiff. 
The  following  are  the  facts  of  the  case,  as  detailed  on  the  trial  below, 
and  the  points  ruled  by  the  court. 

*AOXl  *^^  appeared  in  proof,  that  that  portion  of  the  railroad  run- 
-'  ning  through  the  plaintiff's  ])lantation,  (called  the  Coalter  place.) 
was  overgrown  with  rank  and  luxuriant  grass,  so  that  an  object  like  the 
boy  lying  upon  the  railroad  could  not  be  seen  at  the  distance  of  twenty 
feet,  as  some  of  the  witnesses  said  ;  others,  however,  said,  standing  at  the 
engineer's  post  on  the  engine,  they  could  have  seen  such  an  object  at  the 
distance  of  two  hundred  feet ;  but  within  that  distance  the  engine  could 
not  be  stopped. 

As  the  engine,  on  the  13th  day  of  August,  1840,  w^as  ascending  the 
road,  at  her  usual  time,  and  at  her  usual  gait  of  twenty  miles  an  hour, 
the  engine  ran  over  the  boy  belonging  to  the  plaintiflF,  who  was  lying  on 
the  rail,  crushing  and  nearly  severing  his  body  transversely,  from  under- 
neath the  right  shoulder  to  the  exterior  point  of  the  left.  The  body  lay 
with  the  feet  outside  the  track,  the  head  and  shoulders  on  the  rail.  The 
engineer  did  not  see  the  boy,  owing  to  the  tall  grass,  until  he  was  so 
near  to  him  that  he  could  not  stop  the  engine 

The  proof  on  the  part  of  the  defendants,  was  mainly  directed  to  show 
that  the  boy  was  dead  ijefore  the  engine  i)assed  over  his  l>ody.  The  sup- 
position on  the  part  of  the  defendants  was  that  he  had  been  killed  by 
the  ]ilaiiitifl"'s  driver,  and  laid  u})on  the  road,  so  as  to  permit  the  engine 
to  p:iss  over  his  body.  This  point  was  fully  explained,  and  carefully 
submitted,  as  a  question  of  fact,  to  the  jury.  In  finding  for  tlie  plaintiff, 
they  of  course  found  that  the  boy  was  alive  when  the  engine  passed 
over  his  body  ;  and  as  this  part  of  the  case  is  unquestioned  by  the  appeal 
it  is  unnecessary  to  state  the  evidence. 

(a)  See  1  McM.  189  ;  7  Rich.  490  ;  1  Strob.  455  ;  Cheves,  105 ;  3  Hill,  1.     An. 


*404]  FELDER    VS.    RAILROAD   COMPANY.  605 

The  jury  were  instructed  that  the  company  was  only  liable,  in  this  form 
of  action,  for  the  neglect  of  themselves  or  their  agents.  There  was  no 
blame  to  be  imputed  to  the  enirinecr.  The  only  neglect  on  tiie  part  of 
the  company  which  could  make  them  liable  was  the  suffering  the  road  to 
be  so  overgrown  with  grass  as  to  hide  an  object  from  the  view  of  the 
engineer  within  such  distance  that  he  could  not  prevent  the  engine  from 
passing  over  it. 

They  were  told  that  negro  slaves  were  moral  agents,  capable  of  placing 
themselves  in.  or  e.xtricating  themselves  from  danger.  If  the  boy  (wiio 
was  a  plough-boy,  and  *iherefore  capable  of  understanding  the  r:TC^Ac 
danger,)  voluntarily  or  rashly  placed  himself  in  the  way  of  tlie  ^ 
engine,  as  she  was  approaching,  then  the  plaintitf  could  not  recover.  But 
if  the  boy,  without  any  knowledge  of  the  approach  of  the  engine,  and  in 
fact  before  she  was  in  the  neighborhood,  lay  down  upon  the  railroad  and 
was  asleep,  and  therefore  unconscious  of  the  approach  of  the  engine,  and 
in  that  state  she  passed  over  his  body,  then  the  plaintiff  might  have  a 
verdict. 

The  jury  found  for  the  plaintiff  the  value  of  the  boy. 

The  defendants  appeal  on  the  annexed  grounds  : 

1.  Because  his  Honor  charged  that  if  the  negro  was  asleep  on  the  road,  the 
company  was  liable. 

2.  Because  the  finding  of  the  jury  was  contrary  to  law. 

Glover,  for  the  motion  cited,  ou  the  first  ground,  3  Starkie  on  Ev.  986  ;  11  E. 
60 ;  2  Taunt.  314  ;  6  76.  29  ;  2  J.  283. 

Belleiujcr,  contra,  cited  Legis.  Rep.  of  '37,  p.  25,  for  the  definition  of  negligence. 
2  L.  Ray.  1089 ;  2  Esp.  Rep.  544.     Use  must  be  in  a  lawful  and  proper  way. 

Curia,  per  Butler,  J.  The  only  question  involved  in  this  case  upon 
which  it  is  the  design  of  the  court  to  deliver  its  judgment,  should  rest  on 
a  distinct  statement  of  unquestioned  facts,  unconnected  witli  irrelevant  cir- 
cumstances. The  plaintiff's  slave,  endued  with  ordinary  intelligence, 
and  acquainted  with  the  nature  and  manner  of  using  the  railroad,  volun- 
tarily laid  himself  down  on  it  and  went  to  sleep,  amidst  grass  so  high  as 
to  obstruct  the  view  at  some  distance  over  twenty  feet  ahead.  In  this 
situation,  without  any  fault  of  the  engineer,  the  engine  going  at  its  ordi- 
nary speed,  passed  over  and  killed  the  slave.  There  are  two  causes 
which  may  have  contributed  to  this  result.  The  first  is  the  grass  being 
so  high  as  in  some  measure  to  restrict  the  view  of  the  engineer,  and 
therel)y  preventing  him  from  guarding  against  accidents  as  effectually  as 
be  otherwise  might  have  done ;  and  the  second,  that  of  the  boy  volunta- 
rily and  with  reckless  imprudence  placing  himself  in  danger,  so  as  to 
bring  upon  himself  the  catastrophe.  The  one  was  a  remote  source  of 
danger  and  could  not  be  regarded  as  the  proximate  or  necessary  cause  of 
the  *accidcnt,  for  the  engine  might  have  run  over  the  boy  not-  r*irv(> 
withstanding  the  high  grass,  as  from  the  situation  of  the  body  it  *- 
might  not  have  been  seen  by  the  engineer  until  it  was  too  late  to  stop  the 
engine  in  its  rapid  ])rogress.  The  other  cause  was  immediate  and  neces- 
sary ;  for  unless  the  boy  had  lain  down  on  the  road  he  would  not  have  been 
hurt.  This  proposition  then  presents  itself — should  the  company  be  held 
liable  for  an  injury  to  a  slave  or  other  rational  person,  when  there  is  no 
fault  imputable  to  the  engineer  having  direction  of  the  locomotive,  and 


606  COLUMBIA,    MAT,    1842.      VOL.  IT.  [*406 

when  snch  person  with  voluntary  imprudence  places  himself  in  a  situation 
of  danger  ?  It  seems  to  me  that  it  would  be  a  hard  rule  of  law,  repug- 
nant to  common  notions  of  justice,  that  would  require  the  Court  to  sup- 
port the  affirmative  of  this  proposition.  It  would  be  to  make  the  com- 
])any  not  only  liable  for  its  own  negligence,  but  for  injuries  arising  from 
the  fault  and  imprudence  of  others,  and  they  strangers,  too,  in  nowise 
connected  with  the  employment  of  the  company.  If  one  were  to  put  on 
the  road  a  parcel  of  goods,  and  they  were  to  be  destroyed  by  the  cars 
running  over  them  without  fault  of  the  engineer,  could  such  an  one 
recover  damages  of  the  company  ?  I  think  not.  So  far  from  it,  the 
party  would  be  liable  to  an  indictment  for  obstructing  the  road.  Sup- 
pose another  case — that  a  white  man  should  go  to  sleep  with  a  leg  on 
the  road,  and  that  his  leg  should  be  broke,  under  any  imaginable  circum- 
stances preventing  the  engineer  from  seeing  it  at  the  time,  could  such 
white  man  take  advantage  of  his  own  foolish  imprudence  to  make  the 
company  liable  for  the  injury  he  had  sustained  ?  If  so,  the  next  step 
would  be  to  make  the  company  liable  for  all  injuries  which  persons  may 
sustain  arising  from  their  own  rashness  and  want  of  foresight.  One 
might  recover  because  his  horse  ran  away  and  threw  him  in  consequence 
of  the  animal  becoming  frightened  at  the  cars.  And  in  this  way  the  com- 
pany would  be  deprived  of  all  benefit  of  their  road,  by  being  liable  for 
damages  to  those  who  will  not  take  care  of  themselves.  It  is  su])posed, 
however,  that  the  owner  may  recover  for  an  injury  to  a  slave,  when  he 
could  nut  recover  for  an  injury  to  himself.  I  cannot  well  see  the  pro- 
priety or  justice  of  this  distinction.  A  slave  is  regarded  as  a  chattel,  but 
^iO':!  "^''  ^^^^'^  ^  chattel  as  brute  animals,  *that  have  not  intelligence  to 
-^  enable  them  to  understand  and  conform  to  human  arrangements 
of  the  nature  of  railroads.  These  latter  may  go  on  the  road  without 
knowing  their  danger,  and  have  nothing  higher  than  instinct  to  direct 
them  in  attempting  to  escape  from  it.  With  good  reason,  therefore, 
should  the  company  be  held  liable  for  injuries  done  to  them.  The  defect 
of  the  brute  must  be  regarded  and  supplied  by  the  agents  of  the  com- 
pany— that  is,  where  it  goes  into  danger  of  its  own  accord  ;  but  when  it 
is  put  in  danger  by  the  voluntary  design  of  the  owner,  the  owner  ought 
not  to  be  allowed  to  convert  his  own  act  into  a  cause  of  action.  In  this 
respect  a  slave  is  like  his  owner ;  he  is  a  moral  being  of  volition  and  in- 
telligence, capable,  by  his  foresight,  of  avoiding  danger,  or  of  extricating 
liim.self  from  it  by  consulting  his  reason.  In  regard  to  the  liability  of 
common  carriers,  the  difference  between  slaves  and  other  chattels  has 
been  fully  recognized  by  our  Courts.  In  the  case  of  McDonald  vs.  Clark, 
4  -McC.  225,  the  distinction  is  taken.  Slaves  are  there  regarded  as  other 
passengers,  who,  amidst  the  dangers  of  a  wreck,  may  consult  their  own 
reason  to  extricate  themselves  from  it.  Judge  Johnson  remarks  —  "  There 
is  tlien  a  radical  difl'erence  between  the  liability  of  a  carrier  with  respect 
to  the  tran.^portation  of  a  slave,  and  a  bale  of  goods.  The  latter  has 
neither  the  power  of  volition  or  motion,  and  is  completely  under  his  con- 
trol. The  former  is  operated  on  by  moral  causes  ;  the  latter  only  by  phy- 
sical." Tiiis  remark  suggests  a  distinction  which  may  well  obtain  with 
regard  to  the  liability  of  the  railroad  company  to  those  whom  they  may 
have  in  charge  as  passengers  or  in  their  employment,  and  mere  strangers. 
The  former  have  a  right  to  look  to  the  company  to  take  care  of  them  by 


*407]  FELDER  VS.    RAILROAD   COMPANY.  607 

the  exerci^^e  of  conipetcMit  skill  and  reasonable  ])rn(lence.  Whilst  the 
company  would  have  a  right  to  suppose  that  the  latter  would  take  care 
of  themselves,  or  at  least  would  not  voluntarily  put  themselves  in  a  dan- 
gerous situation.  The  duty  of  giving  attention  to  one,  does  not  extend 
to  the  others  whose  obtrusions  would  be  calculated  to  lead  to  surprise 
and  confusion.  The  law  very  wisely  requires  every  one  to  rely  on  his 
own  prudence;  and  he"  should  consult  that  before  he  undertakes  to  take 
advantage  of  the  faults  of  others.  The  *case  of  Batterfield  vs.  r^  ,/^Q 
Forrester,  11  East,  60,  is  decided  on  this  view  of  the  sul)ject.  It  ^ 
appeared  in  that  case  that  the  defendant,  for  the  purpose  of  making  some 
repairs  to  his  house,  which  was  close  to  the  roadside,  had  put  up  a  pole 
across  that  part  of  the  road,  a  passage  being  left  by  another  passage,  &c. 
The  plaintiff  left  a  public  house  not  far  from  the  place  in  question,  at 
8  o'clock  in  the  evening,  in  August,  when  they  were  just  beginning  to 
light  candles,  but  while  there  was  light  enough  to  discern  the  obstruction 
at  one  hundred  yards  distance,  and  which  the  plaintiff  might  have 
observed  and  avoided  ;  the  plaintiff,  however,  w^ho  was  riding  violently, 
did  not  observe  it,  but  rode  against  it  and  fell  with  his  horse,  and  was 
much  hurt  in  consequence  of  the  accident.  Under  these  circumstances 
the  jury  found  for  the  defendant,  by  the  direction  of  the  presiding  Judge. 
On  a  motion  for  a  new  trial  the  verdict  was  confirmed.  The  judgment 
of  Lord  Ellenborough  is  full  of  good  sense  when  he  says,  "  A  party  is  not 
to  cast  himself  on  an  obstruction,  which  has  been  made  by  the  fault  of 
another,  and  avail  himself  of  it,  if  he  do  not  himself  use  common  and 
ordinary  caution  to  be  in  the  right.  One  person  being  in  fault  will  not 
dispense  with  another  using  ordinary  care  for  himself.  Two  things  must 
concur  to  support  this  action — an  obstruction  in  the  road,  by  the  fault  of  the 
defendant,  and  a  want  of  ordinary  care  to  avoid  it  on  the  part  of  the  plain- 
tiff." To  the  same  purport  is  the  case  of  Flown  vs.  Adam,  2  Taunt.  314. 
According  to  these  views,  the  plaintiff  had  no  right  to  avail  himself  of  the 
omission  of  defendants  to  cut  the  grass  down,  when  it  appeared  that  his 
slave's  own  imprudence  was  the  primary  and  proximate  cause  of  his 
death.  As  the  facts  upon  which  the  judgment  of  the  Court  is  based, 
seem  to  be  unquestioned,  it  would  be  useless  to  send  the  case  back  for  a 
new  trial.     A  nonsuit  is  therefore  ordered. 

RicHABDSON,  Evans  and  Earle,  JJ.,  concurred. 

O'Neall,  J.  I  dissent,  on  the  ground  on  which  the  case  was  decided 
below. 

See  Richardson  vs.  W.  <$•  M.  R.  R.,  8  Rich.  127  ;  Kelly  vs.  Citij  Council,  4  Rich. 
426  ;  Zemp  vs.  W.  ^  M.  R.  R.,  9  Ricli.  93  ;  McClenaghan  vs.  Brock,  5  Rich.  71 ; 
Liseman  vs.  S.  C.  R.  R.,  4  Rich.  414 ;  11  Rich.  291 ;  1  McM.  385,  409.     An. 


608  COLUMBIA,   MAT,    1842.      YOL.  II.  [*409 


*409]  *Yarnum,  Fuller  &  Co.  vs.  Thomas  Evans. 

1.  Where  an  attorney,  acting  under  a  power  of  attorney,  from  the  attorney  of  the 
principals,  recites  in  the  deed  of  release,  the  power  from  the  principals  to  the 
attorney,  or  person  from  whom  he  derives  his  powers,  and  in  the  body  of  the  said 
release  says,  "by  virtue  of  the  autliority  vested  in  me  as  aforesaid,  and  in  the 
name  and  in  behalf  of  the  said  Varnum,  Fuller  &  Co."  (the  principals),  "and 
others,  I  accept  the  provisions  in  the  said  assignment,  made  in  this  behalf,  and 
do  further  release  and  discharge,  kc.  Signed  J.  Winslow,  [l.  s.]  Attorney  for 
C.  P.  M.,  J.  Winslow,  [seal]  Agent  for  V.,  F.  &  Co."  It  was  held,  that  this 
execution  was  in  compliance  with  the  rule  which  requires  a  deed  executed  by  au 
attorney  to  be  sealed  and  delivered  in  the  name  of  his  principal. 

2.  An  acceptance  of  a  provision  under  a  deed  of  assignment,  and  a  release  of  the 
principal,  with  the  assent  of  the  security,  is  equivalent  to  a  discharge  by  opera- 
tion of  law,  and  the  rights  of  all  concerned  are  the  same  under  one  as  well  as 
the  other. 

Before  Butler,  J  ,  at  Marion,  Spring  Term,  1841. 

This  was  a  special  verdict,  and  from  it  tlie  facts  and  matters  in  issue 
between  the  parties  may  be  ftdly  understood.     The  verdict  is  as  follows  : 

We  find  that  the  defendant  and  R.  B.  Wiggins  &  Co.,  executed  the 
following  note  : 

"New  York,  24th  July,  1832. 
$1477   11-100.     Twelve  months  after  date  we  jointly  and  severally 
promise  to  pay  to  the  order  of  A^arnum,  Fuller  &  Co.,  at  their  counting 
room,  No.  165  Pearl  street,  fourteen  hundred  and  seventy-seven  dollars 
11-100,  for  value  received. 

R.  B.  WIGGINS  &  Co., 
THO'S  EYANS." 

That  on  the  I4tli  of  March,  1833,  R.  B.  Wiggins  made  an  assignment 
to  Thomas  Evans,  the  defendant,  and  Edward  13.  Wheeler,  providing  for 
the  payment  of  the  plaintiffs'  debt,  (among  others,)  in  the  first  class  of 
the  debts  enumerated — with  a  condition  therein  expressed,  that  all  credi- 
tors who  did  not,  within  a  specified  time,  execute  a  release  to  the  said 
Wiggins,  of  all  claims,  except  u[)on  the  property  assigned,  should  be 
debarred  from  all  benefit  to  be  derived  from  such  assignment. 

On  the  1st  of  April,  1833,  the  plaintiff,  among  others,  executed  a 
power  of  attorney  to  C.  P.  Mallett,  empowering  him,  or  such  agent  as  he 
*4l0l  "''f?'^^  think  fit  to  appoint,  to  *act  in  their  beiialf,  in  making  a 
-•  settlement  with  the  assignees  of  R.  B.  Wiggins  &  Co.,  and  to 
execute  such  jtuper  or  papers  as  might  be  necessary  to  entitle  them  to  the 
benefit  of  the  a.ssignnient  made  by  said  Wiggins  on  the  14th  of  March, 
aforesaid. 

On  the  8th  day  of  April,  the  said  Mallett,  executed  a  power  of  attor- 
ney to  John  Winslow,  reciting  the  above  and  appointing  said  Winslow 
l)is  attorney  in  the  transacting  of  said  business — ratifying  and  confirming 
all  and  several  his  acts  in  the  premises,  as  fully  and  effectually  as  if  done 
by  himself  in  his  own  proper  jierson.   (Signed)  C.  P.  Mallett.   [Seal.] 

On  tiic  9th  day  of  April,  1833,  the  said  Winslow  came  to  Marion 
Court  Hou.se,  and  executed  an  instrument  reciting  the  above-stated 
powers  of  attorney  and  asf-;ignnicnt.,  and  declaring  that  "  I,  the  said  Win- 


*410]  VARNUM,   FULLER   &   CO.    VS.   EVANS.  609 

slow,  attorney  and  agent  as  aforesaid,  in  consideration  of  tlie  provision 
made  by  said  Wiggins,  i!i  his  said  deed  of  assignment,  for  the  said  Var- 
num,  Fuller  it  Co.,  (and  others,)  and  in  consideration  that  they  shall 
severally  receive  such  amount  of  money  from  the  above-named  assignees, 
or  eitlier  of  them,  in  proportion  to  their  res[)ective  interests  in  said  assign- 
ment, as  they  shall  be  thereunto  severally  entitled  in  pursuance  of  the 
terms  thereof,  do  hereby,  by  virtue  of  the  authority  vested  in  me,  as  afore- 
said, in  the  name  and  in  behalf  of  the  said  Varnum,  Fuller  &  Co.  (and 
others)  accept  the  provisions  in  the  said  assignment,  made  in  this  behalf, 
and  do  farther  release  and  discharge  the  said  Ricks  R.  Wiggins,  and  R. 
B.  Wiggins  &  Co.,  from  all  further  or  other  liability  arising  under  and 
by  reason  of  the  following  claims,  being  the  amount  respectively  due  the 
said  parties,  by  the  said  R.  B.  Wiggins  &  Co.,  (then  among  others  enu- 
merating the  note  sued  on,  and  an  account  due  the  plaintiffs  for  $504  89  ) 
(Signed,)  JOHN  WINSLOW,  [Seal.] 

Attorney  for  C.  P.  3IaUett. 
JOHN  WINSLOW,  [Seal.] 
Agent  for  Varnum,  Fuller  &  Co. 

We  further  find  that  Evans  was  not  guilty  of  fraud  in  representing  to 
Winslow,  that  the  assigned  effects  were  sufficient  to  pay  the  claim  of  the 
plaintiffs,  but  that  Evans  *assented  to  the  release  thus  given,  and  r^i-ii 
that  it  was  made  at  his  instance  and  request,  and  for  his  benefit —  •- 
Evans  was  the  only  assignee  who  acted — Wheeler  refused  to  act. 

If  the  Court  should  be  of  opinion,  from  the  facts  thus  found,  that  the 
plaintiffs  are  entitled  to  recover,  then  we  find  for  them,  the  sum  of  two 
thousand  three  hundred  and  seventy-five  dollars,  thirty-five  cents — if  not, 
we  find  for  the  defendant. 

(Signed,)  JAMES  LANE, 

Foreman.'''' 

Upon  the  facts  found  in  the  foregoing  special  verdict,  his  Honor,  the 
presiding  Judge,  pronounced  the  following  judgment,  in  favor  of  the 
plaintiffs,  for  the  reasons  annexed. 

1.  Because  the  release  having  been  taken  by  the  surety  himself,  it  was 
for  his  benefit,  and  not  in  derogation  of  his  right. 

2.  The  release  should  have  been  executed  by  the  agent,  Winslow,  in 
the  name  of  his  principals,  to  have  made  it  effectual  against  them.  The 
form  in  which  the  paper  is  executed,  would  subject  Winslow  to  its  obliga- 
tions, while  it  imposes  none  on  his  principals.  It  purports  to  convey  or 
release  an  interest,  and  as  such,  it  should  have  been  executed  in  the  name 
of  the  plaintiffs  by  their  agent.  Let  the  postea  be  delivered  to  the 
plaintiff. 

The  defendant  appealed  for  a  new  trial,  on  the  following  grounds : 

1.  Tlie  presiding  judge  erred  in  directing  the  postea  to  be  delivered  to  the 
plaiutitr,  because,  altliough  the  release  may  have  been  tal^en  for  the  benefit  of 
llie  defendant,  there  being  no  fraud,  the  effect  was  to  discharge  him  from 
liability  on  the  note,  as  an  instrument. 

2.  Becau.se  the  release  was  executed  in  legal  form. 

3.  Because,  if  it  was  not  valid  as  a  formal  release,  it  was  still  valid  and 
effectual,  as  a  discharge  by  an  authorized  agent,  on  a  sullicieut  consideration. 

Dargan,  for  the  motion,   on   second  jround,  cited  Fash  vs.  lioss,  2  Hill.  2D4  ; 
YOL.  I. —40 


610  COLUMBIA,    MAT,    1842.       VOL.  II.  [*411 

Taulor  \s.  McLean,  1  McM.;  Welsh  vs.  Parish,  1  Hill  Rep.  161  ;  Covihe's  case,  9 
Coke  ;  1  Salk.  *95;  5  Com.  Law  Rep.  223  ;  Burrell  vs.  Jones,  5  M.  &  S.  3 
■^^-^J  45  ;  Ledbetter  vs.  Fanoio,  1  L.  N.  P.  356  ;  33  Com.  L.  34 ;  10  Wend.  275  ; 
6  Con.  Rep.  464;  8  Pick.  Rep.;  N.  E.  J.  Co.  vs.  De  Wolf,  2  Pick.  222;  11  Mass. 
Rep.  26  ;  1  Camp.  184 ;  2  Wheat.  Rep.  56  ;  4  McC.  323  ;  1  B.  &  Cress.  150  ;  2  B. 
e^  Ad.  328  ;  6  Ves.  Jr.  305. 

Mclcer,  contra,  contended  that  the  execution  by  parol  and  by  deed  are  different- 
Tliis  was  an  execution  by  deed.  The  instrument  set  up  is  void.  Cited  1  Bail. 
517  ;  Prior  vs.  Colter,  2  Kent  Com.  492-493.  Cited  also,  Fash  vs.  Ross,  2  Hill ; 
and  Tai/lor  vs.  McLean,  1  McM.;  the  State  Bank  vs.  Kerr,  1  McM.  141. 

Curia,  per  O'Xeall,  J.  In  this  case  I  first  propose  to  inquire 
whether  the  execution  of  the  release  was  such  as  binds  the  plaintiffs. 

The  attorney  recites  the  powers  from  the  principals  to  Mallet  and  from 
Mallet  to  himself,  and  in  the  body  of  the  release  says,  "  by  virtue  of  the 
authority  vested  in  me  as  aforesaid,  in  the  name  and  in  beJialf  of  the 
said  Varnum,  Fuller  &  Co.,  (and  others)  I  accept  the  provisions  in  the 
said  assignment  made  iu  this  behalf,  and  do  further  release  and  dis- 
charge, «fcc."  The  attorney  executed  this  release  as  follows :  John 
Winslow,  [l.  s  ]  attorney  for  C.  P.  Mallet.  John  Winslow,  (seal)  agent 
for  Varnum,  Fuller  &  Co.  Was  this  execution  a  compliance  with  the 
rule  which  requires  a  deed  executed  by  an  attorney  to  be  sealed  and 
delivered  in  the  name  of  his  principal  ?  I  am  satisfied  it  is.  It  purports 
to  be  by  the  authorit}^  (the  power  recited,)  and  in  the  name  and  in  the 
behalf  of  the  principals.  This  is  as  ample  an  execution  as  if  the  deed 
had  begun,  "We,  Varnum,  Fuller  &  Co.,"  and  had  been  executed 
"Varnum,  Fuller  &  Co.,  by  John  Winslow,  their  attorney,  [l.  s.]"  In 
thus  stating  an  execution  by  Varnum,  Fuller  &  Co.,  I  am  well  aware 
that  a  firm  cannot  be  bound  by  deed,  unless  each  partner  seal  and  deliver 
it,  or  assent  to  the  execution  by  one  for  all.  But  as  no  such  objection 
was  urged  against  the  execution,  we  take  it  for  granted  that  the  execution 
was,  in  this  respect,  binding,  and  the  notice  of  it  has  been  merely  to  pre- 
vent a  misconstruction  of  our  opinion.  In  Pryor  vs.  Coalter,  1  Bail., 
*41^'l  ^^*^'  ^^'^  Welsh  vs.  Parish,  1  Hill,  155,  *there  was  nothing  on 
-I  the  face  of  the  deeds  which  showed  that  the  act  done  was  "  in  the 
name  and  in  behalf"  of  the  principal.  Each  purported  to  be  the  act  of 
A.  B.  attorney  of  C.  D.  ;  and  hence  the  deeds  could  not  be  the  deeds  of 
the  princi[)als.  The  dilferencc  between  those  cases  and  this  mark  a  plain 
and  obvious  distinction.  This,  although  signed  and  sealed  by  the 
attorney,  is  declared  to  be  by  the  authority  and  in  the  name  and  in  the 
behalf  of  the  principals,  which  was  the  same  as  if  the  attorney  had  said, 
by  the  authority  of  tlie  principals  and  in  their  names  and  stead,  I  sign, 
seal  and  deliver  this  deed.  About  the  validity  of  such  an  execution,  no 
one  could  doubt,  and  this  being  ecpiivalent  is  equally  good  and  binding. 
In  Welsh  vs.  Parish,  1  Hill,  1G2,  Judge  Johnson  recognizes  Wilkes  vs. 
Bock,  8  E.  142,  as  good  law.  For  he  says  ''that  case  turned  altogether 
upon  the  manner  of  signing  the  bond,  and  it  was  certainly  very  immaterial 
whether  the  name  of  the  agent  or  principal  was  placed  first,  provided  the 
undcrtakiiif/  or  obligation,  was  in  the  name  of  the  principal."  Re- 
ferring to  Wilkes  vs.  Jiock,  it  fully  sustains  the  ))osition  that  the  deed  is 
the  deed  of  the  principal,  if  it  ])urports  to  be  in  his  name  and  behalf,  no 
matter  how  it  is  signed  by  the  attorney.     In  that  case  Wilkes  and  Brown 


*413] 


VARNUM,  FULLER  &  CO.  VS.    EVANS.         611 


had  been  co-partners.     Bock  was  indebted  to  tliem  by  account.     Brown 
was  absent,  but  Wilkes  was  liis  attorney  ;  tliere  was  some  dispute  about 
tlie  payment  of  the  account,  and  it  was  ap:rced  to  submit  it  to  arl)it  ration, 
and  the  parties  entered  into  bonds  to  abide  by  the  award.     Wilkes,  for 
hiuiself,  and  as  attorney  for  Brown,  executed  their  bond  in  this  form, 
Matthias  Wilkes,   [l.  s.]  For  James  Browne;   Matthias  Wilkes,  [i..  s.] 
The   question  was,   whether  Brown  was  bound   l)y  the  award   made  up 
according!;  to  the  submission.     It  was  held  that  he  was,  inasmuch  as  the 
execution,  from  the  bond  itself,  appeared  to  be  done  for  him,  and  in  his 
name,  and  by  his  authority.     That  decision  touches  this  case.     For  it  is 
no  more  a  strict  execution  than  is  the  case  before  us.     From  the  release 
in  this  case,  as  well  as  the  bond  in  that,  the  execution  appears  to  be  done 
for  the  plaintiffs,  and  in  their  name  and  by  their  authority ;  and  hence, 
on  the  authority  of  that   case,   is  entitled   to  be  supported.      Nor  is 
Combe's  case,  9  Rep.,  86,  (which  has  given  rise  to  all  this  *nicety  f^a-ia 
about  the  execution  of  deeds  by  attorneys,)  at  all  opposed  to  this  ^ 
conclusion.     That  was  the  case  of  a  surrender  of  a  copyhold  by  an  entry 
on  the  rolls  of  the  Court.     It  was  made  by  attorneys,  but  not  in  the 
name  of  their  principal ;  inasmuch,  however,  as  in  the  entry  the  attorneys 
set  out  their  power,  and  referring-  to  it,  declared  the  entry  to  be  in  pur- 
suance of  the  authority  thereby  given  to  them,  it  was  held  to  bind  the 
principal.     This,  it  will  be  noted,  is  a  direct  authority  in  support  of  the 
release  in  question.     For  it  declares  an  act  done  in  i)ursuance  of  a  recited 
power  made  by  the  principal  to  be  his  act,  and  hence,  as  the  same  circum- 
stance is  found  in  this  case,  it  supports  the  view  that  the  release  here  is 
the  deed  of  the  plaintiffs.     But  I  admit  that  the  entry  there  was  an  act, 
without  sealing  or  delivery,  and  that  in  that  point  of  view,  this  case  is 
distinguished  from  the   point  there  decided.     The  Court,  however,  in 
enforcing  the  judgment,  stated  the  principle  which  gave  rise  to  the  rule 
governing  this  case.     It  was  there  said,  "  if  attorneys  have  power,  by 
writing,  to  make  leases  by  indenture,  for  years,  &c.,  they  cannot  make 
indentures  in  their  own  names,  but  in  the  name  of  him  icho  gives  them 
warrant.''^     This  is,  I  concede,  the   law  governing  all   deeds  made  by 
attorneys,  and  to  it  their  deeds  must  conform  ;  but  this  is  done  whenever, 
as,  in  this  case,  the  deed  declares  it  to   be  made   in  pursuance  of  the 
authority  and  in  the  name  and  behalf  of  tlie  principal.     From  this  review 
and  application  of  the  law,  I  think  the  release  is  good;  and  this  brings 
up  the  question  whether  it  discharges  the  defendant.     I  do  not  think  it 
does.     In  the  first  ])lace,  it  does  not  seem  to  me  that  it  is  a  discharge  of 
Hicks  B.  Wiggins  k  Co.     For  it  sets  out  that  in  consideration  of  the 
provision  made  by  Ricks  B.  Wiggins,  in  his  said 'deed  of  assignment,  for 
the  said  Varnum,  Fuller  &  Co.,  and  others,  and  in  consideration  that  they 
i>haU  aevei-alli/  receive  such  amount  of  money  from  the  alcove  named 
assignees,  as  they  shall  be  thereunto  severally  entitled  in  pursuance  of 
the  terms  thereof,  the  provisions  in 'the  assignment  are  accepted;  and 
Ricks  B.   Wiggins  &  Co.,  are   released  and  discharged.     The  special 
verdict  does  not  find  that  the  ])laintiffs  ever  received  any  thing  under  the 
assignment ;  and  if  they  did  not,  I  apprehend  the  release  is  without  con- 
sideration, and  is  not  binding  *on  the  plaintiffs  even,  as  against  ^:^,■l- 
Wiggins.     But  be  that  as  it  may,  it  is  clear,  I  think,  in  the  second  '-       '^ 
place,  that  Evans  cannot  pretend  that  he  is  discharged.     The  assignment 


612  COLUMBIA,    MAY,    1842.      VOL.  II.  [*415 

was  to  him,  and  to  protect  him  in  his  securityship  ;  to  enable  him  to 
avail  himself  of  the  benefits  of  the  assignment,  the  plaintiff's  release  was 
necessary  to  be  executed.  He  procured  it  to  be  done,  and  the  jury  have 
found  not  only  that  he  assented  to  it,  but  that  it  was  for  his  beneBt. 
Under  such  circumstances,  it  cannot  be  a  release  of  him.  For  the  release 
of  one  joint  or  joint  and  several  debtor  only  operates  as  a  release  to  the 
other,  when  made  without  his  knowledge  or  assent,  on  the  ground  either 
that  by  the  terms  of  the  contract  it  cannot  be  enforced  against  one,  but 
must  be  against  both,  or  if  by  the  terms  of  the  contract  it  may  be  enforced 
against  one,  then  that  it  deprives  him  of  a  remedy  against  his  co-debtor. 
This  case  is  under  the  last  branch  of  the  proposition  stated  ;  for  the  note 
of  Wiggins  &  Co.  and  the  defendant  is  joint  and  several.  There  is 
nothing  therefore  in  the  form  of  the  contract  to  prevent  a  recovery 
agailist  the  defendant  as  a  several  promissor.  The  release  deprived  him 
of  no  remedy.  For  he  himself  was  the  assignee,  and  to  make  his  remedy 
perfect,  it  was  necessary  to  be  executed.  When  therefore  it  was  executed 
by  his  procurement,  with  his  assent,  and  for  his  benefit,  it  cannot  relieve 
him  from  the  note  to  the  plaintiffs.  It  is  very  analogous  to  a  discharge, 
under  the  bankrupt  or  insolvent  debtors'  law ;  either  would  discharge  the 
principal ;  but  yet  the  security  would  be  bound.  An  acceptance  of  a 
provision  under  a  deed  of  assignment,  and  a  release  of  the  principal,  with 
the  assent  of  the  security,  must  be  equivalent  to  a  discharge  by  operation 
of  law,  and  the  rights  of  all  concerned  would  be  the  same,  under  one  as 
well  as  the  other. 

The  motion  is  dismissed. 

Richardson,  Earle  and  Butler,  JJ.,  concurred. 

See  Robertson  vs.  Pope,  in  Errors,  4  Rich.  502.     An. 

Note. — The  Reporter  is  not  in  possession  of  the  different  exhibits  contaiiiing  the 
evidence  and  all  tlie  facts  that  were  before  the  Court ;  but  he  Hatters  himself  that 
enough  is  furnished  of  the  case  to  make  it  intelligible.  Ho  has  given  all  that  he 
received. 


*416]      *  James  II.  Cobb  vs.    Geo.  W.   Pressly,  Sheriff. 

1.  A  sheriff  cannot  recover,  (in  an  action  of  assumpsit,)  from  a  purchaser  at 
sheriff's  sale,  for  property  purchased,  where  the  purchaser  is  the  owner  of  the 
execution  in  his  olfice  entitled  to  a  preference  from  the  proceeds  of  sale,  unless 
he  can  show  that  a  part  of  the  money  arising  from  the  sales  was  applicable  to 
the  ])ayment  of  liis  costs,  and  then  only  the  amount  of  las  costs. 

2.  When  one  being  the  owner  of  an  execution,  under  which  the  sheriff  sells,  pur- 
cliases  projxTty  at  the  slieriff's  sales,  upon  an  action  of  assumpsit  against  him 
by  tlie  sheriff  for  tlie  amount  of  his  bids,  he  cannot  avail  himself  by  way  of 
discount  of  the  amount  of  liis  execution  in  tlie  sheriff's  office,  although  his  exe- 
cution is  entitled  to  the  preference  in  the  sales. 

Before  Riohardson,  J.,  at  Abbeville,  Spring  Term,  1842. 

This  was  an  action  of  assunii)sit  to  recover  $330  the  price  of  a  slave 
and   cow  bougiit  I)y  the  defcndunt  at  tlie  plaintiff's  sale   for   cash,  by 


*416J  COBB    vs.    PRESSLY.  613 

authority  of  executions  against  John  Riley.  It  was  admittofl  that  the 
defendant  was  the  assignee  of  a  case  in  wliich  AVilliara  B.  Hill  was  the 
plaintiff  against  Riley,  and  thus,  although  there  were  junior  executions, 
the  money  when  received  should  be  apiilied  to  the  defendant's  execution. 
It  was  also  admitted  that  no  rule  had  been  made  against  the  sheriff,  but 
the  money  was  claimed  by  a  junior  execution  creditor.  The  defendant 
filed  a  discount  under  which  he  claimed  the  proceeds  of  the  sale,  as  ap- 
plicable to  the  senior  execution,  and  insisted  that  as  the  money  would,  if 
paid  by  him  to  the  plaintiff,  be  applied  to  the  execution  of  whicli  he  is 
assignee,  the  plaintitf  shoidd  not  be  permitted  to  recover  against  him.' 
The  presiding  Judge  was  of  opinion,  and  so  held,  that  the  plain titf  was 
entitled  to  recover,  and  thus  the  matter  of  the  discount  could  not  avail 
the  defendant.  The  court  also  held  tliat  as  the  sale  was  fur  cash,  the 
plaintiff  was  entitled  to  recover  interest  on  the  price  for  which  the 
property  sold. 

The  defendant  appeals,  on  the  grounds  annexed  to  this  report. 

1.  Because  his  Honor  the  presiding  Judge  held  that  the  defendant's  discount 
is  inadmissible,  and  thus  the  matters  therein  stated  could  not  avail  the  defend- 
ant in  the  form  of  law. 

*2.  Because  his  Honor  held  that  the  plaintiff  was  entitled  to  recover  r^ii  j 
interest  from  the  time  the  property  was  sold  to  the  defendant.  L 

Burt  and  Thompson,  for  the  motion. 

Perrin,  contra. 

Curia,  2'>er  O'Neall,  J.  We  all  agree  that  the  defence  of  the  de- 
fendant as  a  discowif,  could  not  be  received  ;  for  there  was  no  demand 
on  the  part  of  the  defendant  against  the  plaintiff  which  could  be  the 
subject  of  a  cross  action.  The  defendant  had  the  proceeds  of  the  sale  of 
Riley's  goods  in  his  own  hands,  and  if  he  was  entitled  to  retain  he  could 
have  no  claim  against  the  sheriff.  If  he  had  not  that  right,  still  until  he 
paid  him  the  money  he  would  have  had  no  right  of  action  on  account  of 
it ;  so  that  the  discount  is  out  of  the  question,  and  the  whole  ease  is 
resolved  into  the  inquiry  whether  the  sheriff  could  recover  from  the 
de^{inda.nt  without  shoioing  that  persons,  other  than  tlie  defendant,  icere 
entitled  to  receive  the  money  from  him  or  that  a  part  of  it  was  appli- 
cable to  the  payment  of  his  costs.  It  is  generally  true,  that  at  common 
law,  the  sheriff  is  entitled  to  demand  and  receive  the  proceeds  of  a  sale 
made  by  him,  and  to  bring  the  money  into  court.  But  it  is  equally  true, 
that  when  there  is  no  reason  for  the  enforcement  of  this  rule,  it  ought 
not  to  prevail.  Indeed  one  part  of  it  is  abrogated  by  statute.  For 
noio  where  there  is  no  confliciing  claim  to  money  collected  on  an  exe- 
cution, the  sheriff  is  bound  to  pay  the  same  to  the  plaintiff  in  execution 
within  ten  days  after  he  has  received  it,  if  demanded,  under  a  i)enalty  of 
50  per  cent.  Act  of  UOG,  5  Stat,  at  Large,  284.  Thomas  vs.  Fates,  1 
McMuU.  no.  This  abrogated  the  common  law  rule,  that  the  sheriff 
was  to  bring  the  money  into  court  in  all  cases.  That  is  his  duty  now, 
only  where  there  may  be  conflicting  claims.  Following  up  the  reason 
on  which  the  act  is  founded,  that  the  plaintiff  in  execution  is  entitled  to 
receive  his  money  as  soon  as  the  sherifl"  may  collect  it  ;  and  considering 
its  provision  that  when  paid  to  him  he  is  bound,  at  least  within  ten  days 
afterwards,  under  a  heavy  penalty,  to  pay  it  to  the  plaintiff,   the  inquiry 


614  COLUMBIA,    MAY,    1842.      VOL.  11.  [*417 

is  presented  to  the  mind,  why  do  so  senseless  and  nuojatory  an  act  as  to 
make  the  plaintiff  in  execution  pay  the  amount  of  his  bid  by  which  he 
*<n8l  purchased  the  defendant's  property,  to  the  sheriff?  I  can  give 
-I  no  satisfactory  answer  to  that  question  ;  and  recurring  to  the 
reasons  on  which  the  action  of  assumpsit  proceeds,  I  think  it  is  plain, 
that  the  defence  ought  to  be  sustained.  In  assumpsit  we  are  fettered  by 
no  strict  pleading.  The  plaintiff's  demand,  as  in  this  case,  that  the 
defendant  should  pay  him  cash  for  property  purchased  and  delivered  to 
him  at  sheriff's  sale,  is  fairly  met  by  the  answer,  "I  am  entitled  to  re- 
ceive the  money  from  you,  and  my  purchase,  so  far  extinguishes  my  claim 
and  is  therefore  paid  in  cash."  If  in  point  of  fact  the  money  when  received 
by  the  sheriff  is  applicable  to  other  del)ts  then,  of  course,  this  showing  at 
once  destroys  the  defence.  That  the  sheriff  cannot  be  prejudiced  by  this 
view,  is  plain.  For  if  the  junior  creditors  sue  him  for  the  money,  he  has 
only  to  hold  up  this  execution,  under  which  the  defendant  claims,  and 
say  the  money  is  applicable  to  it,  and  the  defence  is  at  once  made  out. 
If  he  has  a  claim  for  commissions  or  costs  to  be  paid  out  of  this  property, 
then  that  may  be  recovered  against  the  defendant  under  his  purchase. 
For  so  far  he  is  not  entitled  to  retain.  If  the  sheriff,  when  he  sold,  had 
refused  to  deliver  the  property,  until  the  purchase  money  was  paid,  it 
may  be,  he  might  have  done  so,  and  it  is  possible,  the  defendant  would 
have  been  without  remedy.  But  after  a  delivery  to  the  defendant,  and 
consequently  by  that  act  the  sheriff  made  himself  liable  to  all  the  execu- 
tion creditors  for  the  proceeds,  and  by  which,  if  it  had  been  to  another, 
the  defendant  might  have  demanded  his  money,  and  compelled  him  to 
pay  it,  under  a  peuealty  of  50  per  cent.,  it  would  seem  to  be  a  self-evi- 
dent proposition,  that  if  the  defendant  was  entitled  to  the  money,  he 
might  legally  refuse  to  pay  it  to  the  sheriff.  The  motion  for  a  new  trial 
is  granted. 

Earle  and  Butler,  JJ.,  concurred. 

Evans,  and  Richardson,  JJ.     We  dissent,  because  the  sheriff  has  a 
right  to  demand  the  money  of  every  purchaser. 


*410]  *  Jonathan  Cooper  vs.  William  Halbert. 

1.  It  is  a  well-sottled  rule  that  for  all  acts  done  under  color  of  legal  proceedings, 
where  the  court  has  no  jurisdiction,  or  where  the  proceeding  is  irregular,  tres- 
pass ami  not  case  is  the  proper  form  of  action.  See  Harp.  Rep.  48G,  McCool  vs. 
McCliuu'ii. 

2.  Ill  an  action  on  the  case,  where  the  plaintiff's  declaration  complained  that  the 
defendant  caused  an  execution  to  be  issued  and  levied  upon  his  land  and  goods, 
and  the  same  to  he  sold  by  the  sheriff,  and  the  money  arising  from  the  sale  of 
the  same  to  U'.  ajjplicd  to  the  satisfaction  of  the  said  execution,  and  averred 
that  aflenvanls  tlie  judgment  upon  which  the  execution  issued  "was  set  aside 
and  rendered  of  no  eifect,  cSic.,  and  afterwards  a  verdict  was  rendered  in  the 
same  case  for  the  defendant  (now  the  i)laintiff)  whereby  it  was  estabhshed  that 
tlie  said  defendant  (now  plaintiff)  was  not  in  arrears,  or  in  anywise  indebted 
to  the  said  defendant,"  by  means  whereof  the  said  plaintiff  was  greatly  in- 
jured, (See.     Jt  was  In  hi,  that   the  declaration  did  not  contain  such  a  cause  of 


*419]  COOPER   vs.    HALBERT.  615 

action  as  that  the  defeot  could  be  cured  l)y  tlie  verdict  of  the  jury,  and  a  motion 
in  arrest  of  judgment  was  sustained, 
3.  After  verdict,  the  court  will,  by  intendment,  suppose  every  thing  to  have  been 
proved  which  the  allegations  of  the  record  require  to  be  proved  ;  but  where 
everv  tiling  which  constitutes  the  gist  of  the  action  on  the  case  is  omitted,  the 
judgment  will  be  arrested. 

Before  Earle,  J.,  at  Laurens,  Spring  Term,  1842. 

This  was  a  special  action  on  the  case,  for  causing  an  execution  to  be 
issued  against  the  plaintiff,  and  his  land  and  goods  to  be  sold  by  the 
sheriff,  upon  a  judgment  which  was  afterwards  set  aside  for  irregularity; 
the  suit  having  been  prosecuted  by  the  defendant  for  a  demand  whicli  was 
wholly  unfounded. 

The  facts  will  fully  appear  by  the  report  of  the  presiding  Judge. 

"  The  defendant  was  the  administrator  of  an  estate  of  which  the  plain- 
tiff was  one  of  the  distributees.  On  making  the  plaintiff  a  payment,  in 
1831  or  1832,  defendant  took  his  receipt  for  the  sum  ])aid,  with  a  stipu- 
lation annexed,  that  if,  on  final  settlement,  he  should  be  found  to  have 
received  more  than  his  share,  he  would  refund.  In  1832,  there  was  some 
settlement  before  the  Ordinary,  and  the  defendant  alleged  the  plaintiff 
liad  received  too  much.  At  Fall  Term,  1835,  he  brought  his  action  on 
the  accountable  receipt;  and  at  April  Term,  1836,  he  obtained  judgment, 
the  plaintiff  having  entered  no  appearance,  and  made  no  defence.  The 
ease  was  ordered  to  be  referred  to  the  clerk,  and  on  his  assessment,  judg- 
ment was  signed  and  execution  issued,  under  which,  in  January,  1837,  the 
plaintiff's  land,  which  he  had  previously  sold  for  $400,  *was  sold  r^Aon 
by  the  sheriff  for  $97  ;  a  wagon,  worth  $60  was  sold  for  $51 ;  and  L 
a  horse  and  saddle,  worth  $G0  were  sold  for  $45.  The  person  who  had 
purchased  the  plaintiff's  laud  from  him  before,  attended  the  sheriff's  sale 
and  became  again  the  purchaser,  at  the  sum  above  mentioned. 

"At  April  Term,  1839,  the  judgment  was  set  aside,  and  plaintiff 
obtained  leave  to  appear  and  plead.  Thereupon,  issue  was  joined,  and 
at  November  Term,  1839,  there  was  a  verdict  for  the  defendant,  now 
plaintiff.     And  at  March  Term,  1840,  he  brought  this  action. 

"  I  overruled  a  motion  for  nonsuit,  on  the  ground  that  the  action 
should  have  been  trespass,  and  not  case,  and  sent  the  case  to  the  jury, 
advising  them  to  find  for  the  plaintiff  the  actual  damage,  at  least,  with  as 
much  more  as  in  their  judgment  the  motives  and  conduct  of  the  defendant 
warranted.  They  found  for  the  plaintiff  over  $300,  intended,  I  suppose, 
to  cover  the  actual  damage,  with  interest,  cost,  &c.  There  was  no  proof 
whether  the  purchaser  of  the  land  had  or  had  not  paid  the  amount  of  the 
purchase-money  to  the  plaintiff.  If  he  had  not,  he  was  liable  for  it,  and 
entitled  only  to  the  abatement  of  the  sum  paid  to  the  sheriff,  which  was 
the  actual  damage  on  that  head.  I  instructed  the  jury,  that  the  execu- 
tion was  a  protection  to  the  sheriff,  in  the  sale  of  the  plaintiff's  property, 
without  any  opinion  whether  the  sale  was  valid  or  not.  Both  parties 
appeal,  on  the  grounds  annexed." 

The  defendant  appealed  and  moved  in  arrest  of  judgment,  for  a  nonsuit  and 
a  new  trial,  on  the  following  grounds,  viz.  : 

III  arrent  of  judgment : 

1st.  Because  the  declaration  does  not  allege  the  scienter  against  the  de- 
fendant. 


616  COLUMBIA,   MAT,    1842.      VOL.  11.  [*420 

26.  Because  the  declaration  does  not  charge  that  the  acts  complained  of 
against  defendant  were  done  wilfully,  maliciously,  and  well  knowing  that  the 
same  were  unlawful  and  void,  which  is  necessary  in  this  form  of  action. 

For  a  nonsuit : 

^Because  the  action  should  have  been  trespass,  and  not  *case,  as  the 
''^-  J  judgment  under  which  the  property  was  sold,  was  null  and  void,  ab  initio. 

For  a  neio  trial : 

1st.  Because  the  Court  charged  the  jury  that  the  sale  of  the  land  and  other 
property  under  execution  of  the  defendant,  against  the  plaintiff,  referred  to  in 
the  plaintilT's  declaration,  was  legal,  and  vested  a  right  in  the  purchaser. 

2d.  Because  the  defendant  was  not  liable  in  this  form  of  action,  for  the 
illegal  acts  of  his  counsel  and  other  officers  of  Court,  unless  he  acted  with 
knowledge.     The  Court  held,  that  he  was  liable  for  the  acts  of  his  counsel". 

3d.  Because  the  verdict  is  contrary  to  law  and  evidence. 

Plaintiff's  ground  of  appeal: 

That  his  Honor  the  presiding  Judge,  erred  in  charging  that  the  plaintiff  had 
not  sustained  actual  damages,  on  account  of  the  land,  above  the  sum  for 
which  it  sold  by  the  sheriff,  when  it  was  worth  much  more. 

^1.  W.  Thojnpson,  for  tlie  motion,  cited,  on  the  grounds  in  arrest  of  judgment, 
1  Chitty  on  Plead.  320,  sec.  4.  There  must  be  a  scienter.  The  declaration  must 
contain  an  allegation  that  the  act  comijlained  of  was  done  maliciously.  Referred 
here  to  2  Wilson,  302,  307 ;  1  Chitty  Plead.  133,  letter  U  ;  lb.  388,  letter  T.  It 
must  be  alleged  that  the  party  knew  the  court  had  no  jurisdiction.  ,  2  Leigh  N. 
Prius,  1402,  1404 ;  2  Chitty  Plead.  242. 

On  the  ground  for  nonsuit,  cited  6  J.  L.  Diet.  363,  letter  D  ;  1  Brer.  120,  sec. 
22;  1  Cowan,  711,  734;  1  Chitty  Plead.  132,  letter  S;  3  Starkie,  titl.  Trespass; 
1  Bail.  441,  McIIugh  vs.  Punch;  Harp.  L.  Piep.  4St),  McCool  vs.  McCluney;  Rem- 
liert  vs.  Kelli/,  lb.  65. 

Bobo,  contra,  relied  on  7  Wend.  301 ;  1  N.  &  McC.  408  ;  lb.  224 ;  8  Johns. 
Rep. ;  Bacon  Abr. ;  5  B.  &  P.  446  ;  Day's  Ev,  in  note. 

Curia,  75e?-EARLE,  J.  The  plaintilT,  in  his  declaration,  complains  that 
the  defendant  caused  an  execution  to  be  issued  and  levied  upon  his 
land  and  p^oods,  and  the  same  to  be  sold  by  the  sheriff,  and  the  money 
*49-)l  arising  from  the  *sale  of  the  same  to  be  applied  to  the  satisfaction 
-^  of  tlie  said  execution  ;  and  avers  that  afterwards  the  judgment  in 
favor  of  tlic  defendant,  upon  which  the  said  execution  issued,  "  was  set 
aside  and  rendered  of  no  effect,  &c.,  and  afterwards  a  verdict  was  ren- 
dered in  the  same  case  for  the  defendant,  whereby  it  w^as  established  that 
the  said  Jonathan  was  not  in  arrears  or  in  any  wise  indebted  to  the 
said  William,"  by  means  whereof  the  said  Jonathan  is  greatly  injured,  &c. 

Xothing  is  better  established  than  the  general  rule,  that  for  all  acts 
done  undercolor  of  legal  proceedings,  where  the  Court  has  no  jurisdiction, 
or  where  the  proceeding  is  irregular,  trespass  is  the  proper  form  of  action. 
1  CIi.  Pi  184. (r/)  And  where  a  judgment  has  been  set  aside  for  irregu- 
larity, that  is  the  appropriate  remedy  for  any  act  done  under  it.  Ibid.; 
1  Str.  .009.  This  was  expressly  ruled  here  in  McCool  vs.  McLooney, 
State  Rep.  480,  where  it  was  held  that  case  would  not  lie.  And  this  is 
decisive  of  the  jiresent  action,  unless  it  can  be  supported  on  another 
ground,  suggested  on  the  circuit,  and  which  induced  me  to  overrule  the 
motion  for  a  nonsuit ;  it  is  tliat  the  proceeding  was  wholly  unfounded  as 
well  as  irregular,  and  was  adopted   by  the  defendant  with  an  express 

(a)  f-cc  Miller  vs.   Grice,  1  llhh.  147  ;    Trij>p  vs.  Martin,  1  Sp.  238.     An. 


'422] 


COOPER    VS.    HALBERT.  617 


malicious  intent.  Such  was  tlie  case  in  GosUa  vs.  WilcocJc,  2  Wils.  302, 
for  maliciously  causing;  the  ])laiiitiff  to  be  arrested,  in  an  inferior  court, 
wliich  had  no  jurisdiction,  without  any  probable  cause,  the  defendant  not 
having  at  the  time  of  such  arrest  and  imprisonment  any  just  or  probable 
cause  of  action  against  the  plaintiff.  In  that  case,  no  doubt,  trespass 
would  lie  for  the  arrest  in  a  court  having  no  jurisdiction;  and  as  the  pro- 
ceeding was  adopted  with  an  express  malicious  intent,  in  a  court  which 
the  party  knew  had  no  jurisdiction,  an  action  on  the  case  would  also  lie, 
as  the  Court  held  ;  both  malice  and  the  want  of  probable  cause  being 
alleged  and  proved,  as  they  were  essential  to  the  action.  It  is  true  that 
the  allegation  that  the  defendant  knew  the  Court  had  no  jurisdiction  was 
not  contained  in  the  declaration  ;  and  the  Court  held  it  cured  by  the  ver- 
dict and  refused  to  arrest  the  judgment.  In  the  case  under  consideration, 
the  declaration  was  not  referred  to  on  the  circuit,  else  I  should  hav^  been 
constrained  to  nonsuit  the  plaintiff  for  the  want  of  a  *suflQcient  r^^go 
cause  of  action  in  the  form  adopted.  It  is  alleged  that  the  L 
verdict  for  the  defendant,  now  plaintiff,  on  the  trial  of  the  former 
issue  after  the  judgment  was  set  aside,  established  that  he  was  "not 
in  arrears,  nor  in  any  wise  indebted"  to  the  defendant;  but  there  is  no 
averment  that  the  suit  was  brought,  or  that  the  execution  was  sued 
out,  "  with  malice,  and  without  probable  cause;"  both  of  which  are 
essential  to  this  form,. of  action,  and  which  must  be  alleged  and  proved, 
as  the  Court  said  in  Gof^lin  vs.  Wllcock.  But  inasmuch  as  the 
plaintiff  was  not  arrested  and  imprisoned,  nor  held  to  bail,  no  action 
lies  against  the  defendant  for  a  mere  malicious  suit,  however  ground- 
less. Bui.  N.  P.  1  Salk.  14.  No  form  of  declaring,  therefore,  would 
have  enabled  the  plaintiff  to  recover  for  having  instituted  and  carried 
on  a  groundless  action,  although  with  malice.  Could  the  defendant 
then  have  been  made  liable  in  an  action  on  the  case,  for  merely  suing 
out  an  execution  upon  a  judgment  which  had  been  rendered  in  his  favor, 
and  was  still  subsisting,  although  irregular  ?  No  doubt,  if  a  plaintiff 
sues  out  an  execution  upon  a  judgment  which  he  knows  to  have  been 
fully  paid  off  and  satisfied,  or  a  second  execution  upon  a  former  under 
the  same  circumstances,  he  would  be  liable  to  an  action,  with  the  proper 
averments  that  it  was  done  with  malice  and  intent  to  harass,  injure  and 
oppress.  But  here  there  is  no  such  case.  The  judgment,  at  the  time 
of  execution  sued  out  and  levied,  was  still  of  force  ;  the  defendant  then, 
now  plaintiff,  had  not  appeared  to  defend,  and  there  was  an  order  for 
judgment  by  default,  and  the  verdict  which  was  finally  rendered  for  him, 
after  the  judgment  was  set  aside,  is  by  no  means  conclusive  that  the  de- 
fendant may  not  have  had  a  probable  cause  of  action,  or  may  not  have 
honestly  believed  that  he  had,  both  when  he  brought  the  action,  and 
wlien  he  sued  out  the  execution,  which  would  have  exempted  him  from 
liability  in  an  action  for  a  malicious  arrest,  if  the  plaintiff  had  been  held 
to  bail.  Gibaon  vs.  Charter.^,  2  B.  &  P.  129  ;  3  Esp.  R  34  ;  1  Camp. 
295.  If  he  was  not  liable  for  bringing  the  suit,  however  groundless, 
then  he  cannot  be  liable  for  suing  out  the  execution,  so  long  as  the  judg- 
ment was  of  force.  Plad  it  not  been  set  aside,  he  could  never  have  been 
made  liable  in  any  form,  either  in  case,  or  trespass,  or  assumpsit,  or  re- 
cover* back  the  money.  Marryott  vs.  Hampton,  D.  &  E.  As  it  r^A-iA 
was  set  aside  for  irregularity,  it  was  the  same  as  if  it  had  never  ^ 


618  COLUMBIA,    MAT,    1842.      VOL.  II.  [*424 

had  been  rendered  and  he  became  a  trespasser.  To  make  hiin  liable  in 
case  also,  and  thus  accumulate  the  plaintiff's  remedies,  would  seem  to  be 
unnecessary  for  the  ends  of  justice.  I  will  not  say  that  it  cannot  be  done 
with  suitable  averments  and  adequate  proof.  In  such  case,  it  would,  at 
all  events,  be  essential  to  aver  and  prove  not  only  that  the  proceeding 
was  malicious  and  without  probable  cause,  but  that  the  irregularity 
which  avoided  the  judgment  was  in  some  way  the  act  of  the  defendant  or 
his  attorney,  and  not  the  act  of  the  Court,  as  it  would  seem  to  be,  pro- 
cured by  falsehood  or  fraud  with  intent  to  injure  the  plaintiff.  There  is 
not  in  the  declaration  any  such  averment  of  malice  or  the  want  of  proba- 
ble cause,  or  any  allegation  that  the  defendant  knew  of  the  irregularity, 
nor  any  thhig  from  which  these  fiicts  can  be  fairly  inferred.  The  simple 
averment  is  that  the  defendant  caused  an  execution  to  be  levied,  and  the 
judgment  was  afterwards  set  aside.  This  presents  a  case  in  which  tres- 
pass alone  would  lie.  After  verdict  the  Court  will,  by  intendment,  sup- 
pose every  thing  to  have  been  proved  which  the  allegations  of  the  record 
require  to  be  proved  ;  but  nothing  more.  And  where  the  declaration 
contains  no  cause  of  action,  the  defect  is  not  aided  by  a  verdict.  Here 
every  thing  which  constitues  the  gist  of  the  action  on  the  case  is  omitted, 
and  the  judgment  must  be  arrested.     The  motion  is  granted. 

RiCHAiiDSGN,  O'Xeall,  Evans,  and  Butler,  JJ.,  concurred. 


*425]  *RoBERT  Devlin  vs.  Simpson  Kilcrease. 

1.  A  party  proving  the  declarations  of  another  party  concerning  a  trespass  which 
had  been  committed,  has  the  right  to  prove  and  give  in  evidence  all  the  expres- 
sions that  were  used  in  the  conversation  relative  to  the  trespass  at  the  time,  as 
well  on  account  of  their  being  a  part  of  the  same  conversation  as  also  to  show 
to  the  jury  the  S])irit  and  feelings  with  which  they  were  spoken. 

2.  It  is  the  right  and  also  the  duty  of  a  judge  to  comment  on  all  the  evidence  of 
a  case  to  the  jury,  and  in  cases  of  complicated  facts  to  give  to  the  jury  the  aid 
of  his  experience,  discrimination,  and  judgment  upon  the  evidence,  as  well  as 
the  law,  so  that  he  finally  leaves  the  ultimate  decision  of  all  the  facts  to  their 
judgment.  This  is  the  practice  of  all  Common  Law  Courts,  and  such  is  the 
well-settled  practice  in  South  Carolina. 

Before  Richardson,  J.,  at  Abbeville,  Spring  Term,  1842. 

This  was  an  action  of  trespass  for  cutting  the  timber  and  poles  of  the 
plaintiff.  The  trees  had  been  cut  by  defendant's  negroes — and  whether 
he  ordered  the  trespass,  was  made  a  question  by  his  counsel.  This  must 
aj)pcar  from  the  evidence. 

The  evitieiicc  taken  at  the  trial,  and  which  has  been  reported  by  the 
presiding  Judge,  as  his  report  of  the  case,  is  herewith  subjoined,  which 
with  the  grounds  of  appeal,  will  sufficiently  explain  the  facts,  and  the 
questions  made  and  decided  by  the  Court. 

"Mr.  A.  Patt'in.  The  d(;fendant  lived  near  to  the  plaintiff,  on  land  of  Kender- 
Hon.  Heard  defendant  say  liis  l)oys  had  cut  some  rail-timber  and  some  poles  for 
chimney.s.  He  liad  bren  to  i)laintiff  to  make  up;  but  tliev  would  have  to  go  to 
law.     He  liad  as  much  money  as  plaintiff  to  spend  at  law  ;  and  he  could  buv  him 


^425] 


DEVLIN   VS.   KILLCREASE.  619 


and  all  he  had,  if  they  were  black;  spring  of  1841,  before  the  suit.     Said  he  had 
gone  to  plaintiff,  and  plaintiff  to  him  first,  and  could  not  settle. 

'■'Croxx-exa mined — Conversation  at  McClinton's  store — As  to  the  fii-st  timber,  lie 
said  plaintiff  would  be  satisfied  to  cut  as  much  of  his  timber.  He  did  not  say 
whether  he  had  authorized  it  or  not ;  but  said  his  boys  had  cut  it,  &c.  Witness 
did  not  attend  to  the  whole  conversation  with  McClinton.  Said  plaintiff  was  not 
willing  to  compromise  the  second  trespass.  Defendant  attends  closely  to  his 
negroes  and  business. 

"Mr.  Samuel  Lear d.     Defendant  said  he  had  before  cut  *some  two  or  r^Ao^a 
three  timber  trees  and  some  poles,  and  plaintiff  would  not  settle,  &c.     lie 
was  contrary. 

'■^Cross-examined — Defendant  said  he  offered  to  pay  him,  and  he  would  not  do 
it.  Plaintiff  was  disposed  to  go  to  law ;  said  his  boys  had  cut  the  timber ;  did 
not  say  it  had  been  done  with  his  permission. 

"./o/(?!  McLaren.  Leased  the  land  to  defendant  for  Henderson,  and  offered  to 
show  defendant  the  lines  ;  but  defendant  said  he  knew  them  from  Mr.  Dill.  The 
fence  runs  on  the  line  three-fourths  of  the  way.  Henderson's  near  timber  land 
had  been  pretty  much  cut  up. 

'■'■Charles  SprouH.  Knows  plaintiff's  land ;  not  a  large  tract;  timber  scarce. 
Saw  where  the  timber  was  cut ;  two  rail  trees  ;  many  poles  ;  some  fifty  yards 
from  the  fence,  or  one  hundred  yards  from  Henderson's  wood-land.  Henderson's 
land  had  many  stumps. 

"Bai-t.  Jordan.  Examined  the  timber-land;  appeared  last  February  to  have 
been  cut  recently  ;  two  pine  trees  of  four  cuts  each,  one  hundred  rails  ;  a  number 
of  pole  stumps,  (twenty  or  twenty-five  ;)  some  good  trees  for  rails  on  Henderson's 
land. 

"The  court  charged  the  jury  with  all  the  facts,  and  especially  to  decide  the 
question  for  themselves  ;  but  turned  their  attention  to  the  use  made  of  the  poles, 
(for  chimneys, )  and  to  the  expression  of  the  defendant,  as  proved,  and  as  indi- 
cating liis  concurrence  in  the  trespass.  If  so,  they  were  told  that  the  plaintiff' 
was  entitled  in  law  to  recover  at  least  the  value  of  the  trees  taken,  to  whidi  the 
jury  might  add  reasonable  damages  for  example's  sake.  The  jury  found  for  the 
plaintiff,  §53." 

From  which  verdict  the  defendant  appealed,  on  the  grounds  following : 

1.  That  the  proof  was,  that  the  trespass  was  committed  by  the  defendant's 
slaves,  and  no  proof  that  the  defendant  ordered  or  directed  it. 

2.  That  his  Honor  charged  the  jury  that_  the  defendant's  offering  to  pay  the 
jdaintifl"  for  the  trespass,  was  an  acknowledgment  that  the  trespass  was  done 
by  his  orders. 

3.  That  his  ITonor  charged  the  jury  that  he  "believed  that  the  defendant 
was  guilty  of  the  trespass ;"  whereas,  it  being  a  matter  of  fact  for  the  jury,  and 
doubtful  from  the  *testiuioiiy,  it  should  have  been  left  to  the  jury,  with-  pioT 
out  any  expression  of  opinion  of  his  Honor,  as  to  the  guilt  or  innocence  L 

of  the  defendant. 

4.  That  his  Honor  admitted  evidence  that  the  defendant  had  said,  (long  after 
the  trespass  was  committed,)  "that  if  the  plaintiff  was  black,  he  could  buy  him 
and  all  he  had." 

5.  That  the  verdict  is  contrary  to  the  law  and  the  evidence. 

Pcrrin,  for  the  motion,  on  the  first  ground  said,  that  it  was  necessary  to  prove 
that  the  defendant  had  committed  the  trespass.  The  declarations  of  defendant 
that  his  negroes  had  cut  the  trees,  was  no  evidence  that  defendant  hail  so  ordered 
the  cutting  of  the  trees.  The  master  is  not  liable  in  law  for  the  trespass  of  his 
slaves,  when  not  committed  by  his  orders.  The  offer  to  pay  hy  defenilant  is  not 
sufficient  evidence,  for  abstract  justice  would  have  prompted  this  offer ;  but  no 
offer  to  pay  was  intended  to  charge  himself  as  giving  the  order  to  commit  the 
trespass. 

On  3d  ground,  cited  Graham  on  N.  Trials. 


620  COLUMBIA,   MAT,   1842.      VOL.  II.  [*427 

4th  ground.  This  is  not  such  a  declaration  as  would  go  to  explain  the  character 
of  the  trespass.     Cited  Starkie  Ev.  ;  2  Maul  &  Selwyn,  77  ;   2  Starkie  Rep.  314. 

The  alia  enormia  only  embraces  such  acts  as  are  committed  at  the  time  of  the 
commission  of  the  trespass.     Cited  Treadway  Rep.  ;  also,  Dudley. 

Burt,  contra,  offered  to  argue,  but  was  excused  by  the  court. 

Curia,  per  Richardson,  J.  The  fourth  ground  of  the  appeal,  sup- 
poses that  the  expressions  of  the  defendant  to  the  witness,  Patton,  that 
"  if  Devlin  was  black,  defendant  could  buy  him  and  all  he  had,"  were  in- 
competent. But  these  expressions  were  part  of  the  conversation  relating 
to  the  trespass,  and  his  own  offer  to  adjust  the  complaint.  And  the 
plaintiff  had  a  right  to  adduce,  before  the  jury,  as  well  the  spirit  in  which 
the  defendant  admitted  the  trespass  done,  as  the  facts.  I  do  not  per- 
ceive how  else  we  could  get  fairly  at  what  the  defendant  did  acknowledge 
*i9Sl  "1^^^^  ^^^^  subject,  unless  by  hearing  all  he  did  say,  leaving  *it  to 
-I  the  jury  to  apply  the  expressions  for  what  they  were  worth,  which 
was  very  little.  The  2d  and  3d  grounds  assume  that  the  Judge  ought 
not  to  indicate  his  own  opinions  upon  the  evidence,  lest  he  should  bias 
the  jury.  In  this  case  such  opinions  were  not  more  than  indicated. 
But  the  frequency  of  such  grounds  of  appeal  leads  me  to  remark,  that 
according  to  the  case  of  the  State  vs.  Bennett,  2  Tr.  Con.  Rep,  692,  it  is 
the  right  of  the  Judge  to  comment  upon  the  whole  evidence  to  the  jury. 
And  in  the  case  of  the  State  vs.  Caxmdoes,  1  K  &  McC.  91,  it  is 
decided  to  be  not  only  the  right,  but  also  the  duty  of  the  Judge,  in  cases 
of  complicated  facts,  "to  give  to  the  jury  the  aid  of  his  experience,  discrimi- 
nation and  judgment  upon  the  evidence  as  well  as  the  law,  so  as  he 
finally  leaves  the  ultimate  decision  of  all  facts  to  their  judgment.  And 
such,  I  presume,  is  the  practice  of  all  common  law  courts.  Of  this,  and 
from  high  autliority,  I  will  give  one  illustration.  Lord  Brough  ;m,  com- 
mending the  judicial  character  and  conduct  of  Lord  Ellenborough,  says  : 
"  Lord  Ellenborough  was  not  one  of  those  Judges  who,  in  directing  the 
jury,  merely  read  over  their  notes,  and  let  them  guess  at  the  opinions 
they  have  furraed,  leaving  them  without  any  help  or  recommendation  in 
forming  own  judgments.  Upon  each  case  that  came  before  him  he  had 
an  opinion  ;  and  while  he  left  the  decision  to  the  jury,  he  intimated  how 
he  tiiouglit  himself.  This  manner,"  he  continues,  "  of  performing  the 
office  of  Judge,  is  now  generally  followed,  and  most  commouly  approved." 
(See  2d  Brougham's  ]\Iiscellanies,  Public  Characters,  p.  -39.)  See  the 
cases  collected  on  this  head,  in  Graham  on  New  Trials  ;  and  I  may  add, 
such  is  the  well-settled  practice  in  South  Carolina. 

The  motion  is  therefore  dismissed. 

O'Xeall,  Evans,  Earle  and  Butler,  JJ.,  concurred. 

See  8  Rich.  140 ;  7  Rich.  478  ;  1  Hill,  227.     An. 


^429]  HATCHER   VS.    HATCHER.  621 


♦Christiana  Hatcher  r.s.  Lucinda  Hatcher.  [*429 

1.  Where  the  plaintiflf,  being  tenant  for  life,  and  the  remaindennan,  during  his 
lifetime,  entered  into  the  following  written  agreement,  "That  the  said  C.  II.  do 
agree  to  let  E.  H.  build  on  the  land  willed  to  him  by  his  father,  at  the  death  of 
the  said  C.  H.;  the  said  C.  II.  do  also  agree  that  E.  II.  may  ojien  and  make  all 
the  improvements  on  said  land  that  he  thinks  proper.  The  said  E.  II.  do  agree 
not  to  interrui^t  any  thing  that  belongs  to  the  said  V.  II.  in  person  or  property. 
If  the  said  E.  II.  should  interrupt  or  suiler  any  of  his  family  to  interi'upt  any 
thing  belonging  to  the  said  C.  11.,  the  said  E.  H.  do  agree  to  pay  the  full  value 
in  cash  or  forfeit  all  the  improvements  on  said  land."  It  was  Ilald,  that  the 
plaintiff  had  not,  by  this  agreement,  surrendered  to  the  remainderman  her  free- 
hold for  life.  Tliat  this  paper  conveyed  nothing  more  than  a  tenancy  at  will, 
or  a  lease  to  terminate  upon  reasonable  notice,  or  a  privilege  during  his  life  and 
peaceable  behaviour. 

2.  The  Court  say,  "that  in  such  anomalous  agreements,  we  must  look  to  the 
instrument  itself  for  its  own  construction,  as  identixjal  papers  cannot  be  found 
already  adj  udged. ' ' 

Before   O'Neall,  J.,  at  Edgefield,  January,  1S42. 

This  was  an  action  of  trespass  to  try  titles.  The  plaintiff  was  the 
widow  of  Jolin  Hatcher,  and  the  defendant  was  the  widow  of  Edward 
Hatcher,  a  sou  of  said  John  Hatcher.  Tlie  said  John  Hatclier  devised 
the  land  in  dispute  to  the  ])Iaintilf  for  life,  and  after  her  death  to  said 
Edward  Hatcher  in  fee.  The  plaintiff  and  Edward  Hatcher  entered  into 
the  following  agreement. 

Memorandum  of  an  agreement  made  and  entered  into  this  the  twenty-seventh 
day  of  August,  in  the  year  one  thousand  eight  hundred  and  thirty-three,  between 
Christiana  Hatcher,  of  the  one  j)art,  and  Edward  Hatcher,  of  the  other  part, 
showeth : 

That  the  said  Christiana  Hatcher  do  agree  to  let  Edward  Hatcher  build  on  the 
land  willed  to  him  by  his  father,  at  the  death  of  the  said  Christiana  Hatcher ;  the 
said  C.  Hatcher  do  also  agree  that  E.  Hatcher  may  open  and  make  all  the  improve- 
m.ents  on  said  land  that  he  thiiiks  proper. 

The  said  Edward  Hatcher  do  agree  not  to  interrupt  any  thing  that  belongs  to 
the  said  C.  Hatcher,  in  person  or  property  ;  if  the  said  E.  Hatcher  should  inter- 
rupt or  suffer  any  of  his  family  to  interrupt  any  thing  belonging  to  the  said  C. 
Hatcher,  the  said  E.  Hatcher  do  agree  to  jyay  the  full  value  in  cash,  or  forfeit  all 
the  improvements  on  said  land. 

In  witness  whereof,  we  have  hereunto  set  our  signatures  *and  affixed  our  r^io/^ 
seals,  this  the  twenty-seventh  day  of  August,  in  the  year  one  thousand  '- 
eight  hundred  and  thirty-three. 

C.  HATCHER,       [l.  s.] 
EDWARD  HATCHER,  [l.  s.J 

Witnesses — Alfred  Hatcher, 

William  .J.  Turner. 

The  plaintiff  proved  (in  addition  to  the  trespass,  location  of  the  land, 
notice  to  quit,  &c.,)  that  Edward  Hatcher  in  his  lifetime,  had  greatly 
annoyed  the  plaintiff,  by  trespasses  upon  her  negroes,  horses,  and  other 
property  ;  but  she  failed  to  prove  any  demand  of  satisfaction  in  money 
for  these  trespasses.  His  Honor  charged  the  jury,  that  the  said  agree- 
ment amounted  to  a  release  by  the  plaintiff  to  Edward  Hatcher,  of  her 
life  estate,  and  that  Edward  Hatcher  had  not  forfeited  his  interest  under 
said  agreement,  without  proof  of  his  refusal  to  pay  in  cash  for  his  tres- 
pass on  plaintifTs  property.  The  jury,  in  pursuance  of  the  charge,  found 
a  verdict  for  defendant. 


622  COLUMBIA,   MAT,    1842.      VOL.  IL  [*430 

The  plaintiff  appeals  for  a  new  trial,  on  account  of  error  in  the  presiding 
Judsre,  on  the  grounds  : 

l.'That.  according  to  the  just  construction  of  said  agreement  a  tenancy  at 
the  will  of  plaintiff,  was  the  only  interest  given  to  the  said  Edward  Hatcher, 
which  was  terminated,  as  well  by  the  acts  of  said  Edward,  as  the  notice  given 
by  plaintiff. 

2.  That  all  interest  of  Edward  Hatcher,  in  the  premises,  was  a  personal 
privilesre.  which  died  with  his  person. 

3.  That  said  Edward  Hatcher  forfeited  all  interest  under  said  agreement,  by 
interrupting  the  plaintiff  in  the  enjoyment  of  her  property. 

Wardlair,  for  the  motion. 

Griffin,  contra. 

Curio,  per  Richardson,  J.  The  only  question  is.  upon  the  proper 
construction  of  the  agreement  between  Christiana  and  Edward  Hatcher. 
Did  she  intend  to  surrender  or  release  to  bim  her  estate  for  life,  so  as  to 
make  the  remainderman,  thereafter,  tlie  exclusive  owner  ?  That  she 
^  -,  intended  by  the  agreement  to  give  some  estate,  or  privilege,  *to 
J  Edward,  is  evident.  But  Mrs.  Hatcher,  being  a  freeholder 
during  her  own  life,  could,  of  course,  make  any  lease,  or  give  any  less 
estate,  tenancy,  or  privilege,  without  surrendering  her  freehold.  In  the 
contest  for  the  one  or  the  other  of  such  estates,  the  court  is  to  decide. 
And  we  are  to  bear  in  mind,  that  a  freeholder  for  life,  and  one  in  fee 
simple,  belong  to  the  same  class  of  estates.  It  is  difScult  to  perceive  in 
the  agreement,  that  without  any  valuable  consideration,  or  any  recipro- 
cal benefit,  she  intended  to  surrender  her  entire  freehold,  when  so  many 
less  estates  might  have  answered  the  purpose  of  her  evident  gratuity, 
and  object  of  peace.  If  Edward  had  been  any  other  than  the  remainder- 
man, or  a  stranger,  or  Christiana  the  owner  iu  fee  simple,  could  we  con- 
clude that  she  had  released  her  whole  estate  ?  If  the  freehold  be  given, 
why  give  him  the  expressed  privilege  to  build  and  clear  the  lands  ?  If 
so  given,  why  make  him,  in  a  certain  event,  forfeit  his  improvements" 
only,  which  would  be  useless  to  her,  if  he  kept  the  land,  and  inconsistent 
with  the  character  of  a  freehold  estate  in  him  ?  Such  a  forfeiture  would 
have  been  idle  in  that  case  ;  and  therefore  it  presupposes  the  land  still  in 
her.  In  such  anomalous  agreements,  we  must  look  to  the  instrument 
for  its  own  construction,  as  identical  papers  cannot  be  found  already 
adjudged.  In  the  instance  before  us,  it  may  have  been  more  than  a 
tenancy  at  will ;  but  assuredly,  not  more  than  a  lease  to  terminate  upon 
reasonable  notice,  or  a  privilege  during  his  life  and  peaceable  behaviour, 
Mrs.  Hatcher  reserving  still  her  freehold. 

A  mere  gratuity  should  be  plain,  and  ought  not  to  be  extended  to  its 
utmost  latitude  and  by  mere  construction  against  the  giver,  when  a  less 
estate,  and  a  very  common  one,  may  have  been  intended  for  the  gift. 
Some  mere  lease  or  privilege  must  therefore  have  been  the  object  of  the 
agreement,  and  when  Edward  died,  it  passed  away,  and  her  life  estate 
stood  unimi)aired  by  the  agreement.  The  motion  for  a  new  trial  is,  there- 
fore, granted. 

Evans  and  Earle,  JJ,,  concurred. 

O'Nfall,  J.    I  regret  that  I  cannot  take  the  view  in  this  case  which 


*431]  HATCUER  VS.    HATCHER.  623 

has  taken  by  a  majority  of  *my  brethren.     But  were  it  not  for  the  r-j^^toc) 
fact,  that  the  report  was  prepared  l>y  counsel,  and  does  not  set  out  ^ 
the  reasons  of  my  judgment,  I  shouUl  not  care  to  state  noiv  the  reasons 
of  my  dissent.     As  it  is,  I  think  it  right  and  proper,  that  I  should  state 
the  grounds  why  I  did  not  concur  in  the  judgment  just  read. 

An  instrument  like  the  one  in  this  case,  is  to  be  fairly  construed  by 
reading  all  its  parts  together,  as  applied  to  the  subject  matter  of  which  it 
treats.  If  there  be  any  doubt,  it  is  to  be  resolved  against  the  grantor. 
Taking  these  rules  as  our  guide,  I  think  there  can  be  little  doubt  that 
the  grantor,  Mrs.  Hatcher,  intended  to  surrender  to  the  remainderman  so 
much  of  her  life  estate  in  the  land,  as  he  might  enter  upon  and  improve, 
under  the  condition  that  the  estate  thus  surrendered  might  be  resumed, 
if  he  (tlie  remainderman)  should  interrupt  or  suffer  any  of  his  family  to 
interrupt  any  thing  belonging  to  the  said  C.  Hatcher,  and  should  fail  to 
pay  the  cash  value  of  said  interruption.  If  this  be  not  the  true  interpre- 
tation, I  would  ask,  why  it  was  that  the  condition  of  forfeiture  of  the 
"improvements"  to  be  made  by  the  said  remainderman  was  inserted  in 
the  agreement  ?  For,  if  it  was  only  a  tenancy  at  will,  the  grantor  could 
enter,  at  any  time  after  a  notice  of  six  months  to  quit  at  the  end  of  the 
year.  The  condition  of  forfeiture  shows  that  the  tenant  for  life  could  not 
enter,  until  the  forfeiture  was  incurred,  and  hence  the  notion  of  a  tenancy 
at  will  is  at  an  end.  It  cannot  be,  that  it  conveys  only  an  estate  for  the 
life  of  the  remainderman,  for  his  covenants  are  not  only  for  himself,  but 
for  his  family,  and  the  forfeiture  is  of  the  only  roofs  which  he  had  pro- 
vided to  cover  his  wife  and  children,  after  his  own  head  had  been  covered 
by  the  clods  of  the  valley.  The  general  grant  of  the  tenant  for  life  is  to 
the  remainderman  to  enter  at  once  upon  the  land,  build  and  make  any 
"improvements  that  he  thinks  proper."  This  was  to  all  intents  and  pur- 
poses a  surrender  of  her  life  estate  in  so  much  of  the  land  as  he  might 
build  upon  and  improve.  To  say  that  his  estate  was  defeated  by  his 
death  is  to  visit  loss  upon  a  man  by  the  act  of  God,  and  which  had  not 
been  prescribed  as  a  condition  of  forfeiture  or  termination  by  the  parties. 
Such  a  thing  was  never  before  heard  of. 

*The  only  doubt  which  I  ever  entertained,  was  whether  the  agree-  r^i^o 
ment  could  operate,  from  its  form,  as  a  surrender.  That,  how-  ^ 
ever,  has  been  removed  by  Smith  vs.  31apleback,  1  T.  R.  441.  In  that 
case  Smith  was  the  proprietor  of  the  "  Three  Jolly  Sailors  at  Rother- 
hite,^^  for  a  long  terra  of  years.  He  demised  the  premises  to  Svvin,  and 
Swin  to  Sellon.  Smith  afterwards  applied  to  take  the  premises,  and  the 
following  agreement,  between  Sellon  and  Anne  Smith  as  the  agent  of  her 
husband,  was  entered  into,  viz.  :  "  Agreement  between  Mr.  Smith  and 
Mr.  Sellon  for  the  Three  Jolly  Sailors  at  Botherhite  :  Mr.  Smith  to 
have  the  house  on  the  terms  mentioned  in  the  lease,  and  to  pay  £8  10s. 
over  and  above  the  rent  annually,  towards  the  good-will  already,  paid  by 
Mr.  Sellon."  It  was  adjudged,  that  this  was  a  surrender,  and  that  the 
plaintiff  was  in  under  his  original  term,  and  that  it  was  not  a  lease  from 
year  to  year.  If  that  agreement  was  properly  construed  to  imply  a  sur- 
render, much  more,  it  ai)pears  to  me,  ought  this  to  be  so  construed. 

Butler,  J.,  signed  neither  opinion. 


624  COLUMBIA,  MAY,  1842.     VOL.  II.  [*434 


*434]  *JoHN  Clarke  vs.  M.  H.  Poozer. 

The*  Same  vs.  J).  H.  Baxter. 

1.  Tlie  general  rule  unquestionably  is,  that  if  the  owner  of  a  chattel  hire  it  to 
another,  he  cannot  maintain  cither  trespass  or  trover  against  a  third  person,  in 
respect  to  any  injury  to,  or  conversion  of  it,  during  the  time  it  is  so  hired. 
But  to  this  general  rule  there  is  one  exception,  which  is,  if  the  bailee  do  an  act 
inconsistent  with  the  bailment,  and  calculated  to  defeat  the  rights  of  property 
of  the  owner,  he  may  treat  the  bailment  as  ended,  and  maintain  trovert. 

2.  Where  a  married  woman,  previous  to  her  marriage,  executed  to  the  plaintiff  a 
deed  of  trust,  for  certain  lauds  and  slaves  therein  named,  by  which  it  was  the 
duty  of  the  trustee  to  permit  the  ce:<titi  que  ti-ust,  during  the  .term  of  her  natural 
life,  to  use,  possess  and  enjoy  the  rents,  profits,  issues,  interests  and  emoluments, 
of  the  said  lands  therein  mentioned,  together  with  the  profits,  hire,  labor  and 
services  of  the  slaves  aforesaid ;  and  the  use,  profits  and  increase  of  the  stock 
and  furniture  aforesaid,  without  any  limitation  whatever ;  provided  always  the 
same  shall  in  no  wise  be  subject  to  the  control,  debts,  contracts,  or  intermedling 
of  any  future  husband,  or  other  person  whatsoever ;  and  provided  the  said 
personal  property  in  said  deed  shall  not  be  removed  out  of  the  district  of 
Charleston,  without  the  consent  of  the  trustee  (the  plaintiif)  first  obtained  in 
writing.  The  plaintifl!"  hired  the  slaves  to  Baxter,  with  whom  the  cfxtiii  que  trust 
had  intermarried,  and  they  were  in  his  possession  in  Orangeburg  district  at  the 
time  they  were  taken  by  execution  against  said  Baxter,  and  sold.  Held,  that 
the  piaintiif  could  maintain  trover  for  the  conversion  of  slaves  sold,  against  the 
purchaser  at  sheriflF's  sale,  it  being  in  direct  violation  of  the  terms  of  the  trust. 

Before  O'Xeall,  J.,  at  Orangeburg,  Spring  Term,  1842. 

These  were  actions  of  trover  brought  by  the  plaintiff  as  trustee  of  a 
married  woman,  under  a  deed  of  trust  executed  by  her  before  her  mar- 
riage, by  which  he  was  directed  to  hold  the  property,  slaves,  to  her  sepa- 
rate use,  and  to  permit  her  to  have  the  services  of  the  slaves.  The  slaves 
for  which  these  actions  were  brought,  were  in  possession  of  the  cestui  que 
trust  and  her  husband.  They  were  seized  by  the  sheriff  under  execution 
against  the  husband,  and  sold,  one  to  Poozer,  for  $7,  and  the  other  to 
Baxter  for  $50.  A  conversation  by  them  was  shown.  They  proved  that 
Clarke,  the  trustee,  said  that  he  had  hired,  for  the  year  1841,  the  slaves 
to  the  husljand  of  the  cestui  que  trust.  They  were  seized  in  January, 
and  sold  iu  February,  1841.  The  defendants  contended  that  they  were 
entitled  to  the  possession  for  that  time,  and  that  plaintiff,  who  had 
brought  his  action  before  the  end  of  the  year,  could  not  recover.  The 
presiding  Judge  thought  differently,  and  ruled  "  that  the  cestui  que  trust 
*4351  ^^'^^'  ""^^''  ^^'^  deed,  entitled  to  the  *actual  services  and  posses- 
-"  sion  of  the  slaves  ;  and  the  trustee  had  no  right  to  hire  them  to 
the  husband.  If  he  did  so  hire,  still  he  was  entitled  to  recover  them  for 
the  fulfilment  of  his  trust."     The  jury  found  for  the  plaintiff. 

The  dofendants  appealed,  on  the  annexed  ground  : 

Because  llie  interest  of  Daniel  11.  Baxter  in  the  negro  slaves  was  the  subject 
oflevy  and  sale,  and  till  the  year  expired,  the  plaintiff  had  no  cause  of  action. 

G/over,  for  the  motion,  cited,  in  support  of  the  appeal,  Dudley  Rep.  38,  Bell  vs. 
Monahan  et  al.;  Riley  Law  cases,  24,  Forgartie  vs.  Uubbell;  4  Dover.  N.  C.  Rep.  70. 

Whitmore,  contra,  said  that  from  the  terms  of  the  deed,  the  hiring  by  the  trustee 
was  illegal,  as  the  cestui  que  trust  was  entitled  to  the  possession  of  the' property. 


^435] 


CLARKE   ^'5.    POOZER    &   BAXTER.  625 


Curia,  per  O'Neall,  J.  The  general  rule  unquestionably  is,  if  the 
owner  of  a  chattel  hire  it  to  another,  he  cannot,  dxrin;/  the  time  it  t>  • 
so  hilled,  maintain  either  trespass  or  trover  against  a  third  person,  in 
resjiect  to  any  injurij  to  or  conversion  of  it.  The  case  of  Gordon  vs. 
Harper,  7  T.  R.  9,  is  an  illustration  of  it.  There,  furniture  leased  with 
a  house  was  wrongfully  taken  in  execution,  by  the  sheriff;  it  was  held 
that  pending  the  lease,  the  landlord  could  not  maintain  trover  against 
the  sheriff.  Because  to  maintain  such  an  action,  there  must  be  in  the 
plaintiff  a  right  of  present  possession,  as  well  as  of  property,  (a)  So  in 
Paine  &  Whitaker  vs.  The  Sheriff  of  Middlesex,  21  Eng.  Crown,  L. 
R.,  390,  goods  on  hire  were  wrongfully  taken  in  execution,  it  was  held 
that  the  owner  could  not  maintain  trover.  This  ruling,  it  must  be  borne 
in  mind,  was  by  Mr.  Justice  Abbott.  For  it  will  hereafter  appear,  that 
he  had  previously  carved  out  an  exception  to  the  general  rule.  In  Bell  vs. 
Monalinn  &  Love,(b)  December,  '38,  this  Court  conformed  very  properly 
to  the  general  rule,  which  I  have  stated.  There,  it  was  held,  that  the 
owner  of  a  horse,  who  had  hired  him,  could  not  maintain  trespass  against 
a  constable  who  seized  him  in  the  possession  of  the  bailee,  and  sold  him. 
But  to  this  general  rule,  there  is,  as  I  conceive,  one  exception,  which  is, 
if  the  bailee  do  an  act  inconsistent  with  the  bailment,  and  *calcu-  r;(:^q/> 
lated  to  defeat  the  right  of  property  of  the  owner,  he  may  treat  •- 
the  bailment  as  ended,  and  maintain  trover.  In  Loeschman  vs.  Machlin, 
3d  Eng.  C.  L.  Rep.,  359,  it  was  ruled  by  Abbott,  J.,  that  the  hirer  of  a 
piano,  who  sends  it  to  an  auctioneer  to  be  sold,  is  guilty  of  a  conversion, 
and  so  is  the  auctioneer,  who  refuses  to  deliver  it,  unless  the  expense 
incurred  be  paid.  That  decision,  regarded  as  an  exception  to  the 
general  rule,  upon  the  principle  which  I  have  pointed  out,  makes  the  two 
decisions  of  that  great  Judge,  Abbott,  in  the  case  o?  Paine  d  Whitaker 
vs.  The  Sheriff  of  Middlesex,  and  Loeschman  vs.  3Iachlin,  perfectly 
reconcilable  ;  otherwise  the  conflict  would  be  apparent  and  indefensible. 

In  North  Carolina,  Andrews  vs.  Shaw,  4  Dev.,  TO,  the  following  case 
is  stated.  William  Butler  conveyed  a  slave  to  the  plaintiff',  in  trust  for 
his  (Butler's)  family.  The  trustee  hired  the  slave  for  a  year  to  Butler, 
who  removed  to  a  distant  part  of  the  State,  and  sold  him  to  the  defend- 
ant. The  Court  held  that  during  the  year  of  hiring,  trover  would  not 
lie.  This  point,  it  will  be  seen,  is  in  conflict  with  Abbott's  decision  in 
Loeschman  vs.  Machlin,  and  if  it  was  necessary  for  the  purpose  of  this 
case,  I  should  be  inclined  to  overrule  it,  and  follow  the  English  decision. 
But  it  is  not;  for  1  rest  my  judgment  upon  a  ground  perfectly  consistent 
wiih  it.  In  it,  the  trust  seems  to  have  been  a  general  one,  and  that  there 
was  no  right  of  actual  possession,  in  the  cestui  que  trusts,  or  that  Butler's 
possession  was  their  possession.  This  hiring  was  not,  therefore,  incon- 
sistent with  the  trust.  It  might  have  been  necessary  to  give  it  eft'ect.. 
But  in  the  ease  before  us,  the  deed  of  trust  declares  the  duty  of  the 
trustee,  (the  plaintiff)  to  be  "to  permit  the  said  Jane  Rebecca  Brown, 
during  the  term  of  her  life,  the  rents,  profits,  issues,  interests  and  emolu- 
ments of  the  said  tract  of  hand,  heretofore  mentioned,  together  with  the 

(a)  See  Spriggs  vs.  Camp,  2  Sp.  181.     Bellum  vs.   Wallace,  2  Rich.  80;  Supra, 
299.     An. 

(fi)  3  Hill,  30.     Ar. 

Vol.  I.— 41 


626  COLUMBIA,  MAY,    1842.      VOL.  II.  [*436 

profits,  hire,  labor  and  services  of  the  slaves  aforesaid,  and  the  use,  profit 
and  increase  of  the  stock  and  furniture  aforesaid,  to  Jiave,  use,  x>ossess 
and  enjoy,  without  any  limitation  or  condition  whatever.  Provided 
always,  the  same  shall  in  no  wise  be  subject  to  the  control,  debts,  con- 
tracts, or  intermeddling  of  any  future  husband,  or  other  person  what- 
^  -.  soever;  and  provided  the  said  personal  property  *above  men- 
*  '-I  tioned  shall  not  be  removed  out  of  the  district  of  Charleston  with- 
out the  consent  and  approbation,  expressed  in  writing,  of  the  said  John 
Clarke."  The  cestui  que  trust,  Jane  Rebecca,  after  the  execution  of  this 
deed,  intermarried  with  Baxter,  to  whom  the  plaintiff  hired  the  negroes, 
first  in  1838,  as  evidenced  by  his  note  of  hand,  and  they  were  in  the  pos- 
session of  the  cestui  que  trust,  and  her  husband,  in  Orangeburg  district, 
when  seized  in  execution  in  January,  1841.  The  plaintiff,  it  was  proved, 
said  that  he  had  hired  them,  that  year,  to  the  husband.  If  this  be  true, 
it  was  in  direct  violation  of  the  trust,  which  was  to  permit  Mrs.  Baxter 
to  have  the  services  of  the  slaves,  and  that  they  should,  in  no  way,  be 
subject  to  the  control,  debts,  or  contracts  of  her  husband.  The  contract 
of  hiring,  as  between  the  husband  and  trustee,  is  void.  For  the  trustee 
is  to  represent  and  to  protect  the  wife's  interest.  He  is  to  sue  for  her, 
so  that  she  may  be  enabled  to  enjoy  the  property,  according  to  the  trust. 
If  the  hiring  is  good,  and  the  sale  by  the  sheriff  good  for  the  year,  then 
the  property  is,  in  direct  contradiction  to  the  deed,  made  liable  to  the 
control,  debts,  and  contracts  of  the  husband.  This  cannot  be  allowed  ; 
and  the  contract  of  hiring  between  the  husband  and  trustee  must  be 
treated  as  in  violation  of  the  rights  of  the  cestui  que  trust,  and  void. 
The  motions  are  dismissed. 

Richardson,  Evans  and  Earle,  JJ.,  concurred. 

See  Rice  ads.  Burnett,  Sp.  Eq.  589.     An. 


CASES   AT   LAW 

AEGUED  AND  DETERMINED    IN   THE 

COURT    OF    ERRORS    OF    SOUTH  CAROLINA 

Cljarkstoit  ^fcbrimrj),  1842. 


The  State  vs.  The  Bank  op  Charleston,  (a) 

After  a  bank  has  suspended  specie  payments,  its  charter  (in  contemplation  of  law) 
is  forfeited ;  hut  where,  after  its  charter  was  thus  forfeited,  it  continued  to  exist 
(le  facto,  and  exercised  all  the  privileges  and  immunities  previously  granted  by 
the  Legislature,  and  the  Legislature  afterwards,  by  subsequent  legislation, 
declared  that  the  corporation  shall  exist — it  was  held  to  be  a  waiver  by  the  State 
of  previous  forfeiture. 

Before  Butler,  J.,  at  Charleston,  May  Term,  1841. 

This  was  a  scire  facias  to  vacate  the  charter  of  a  bank,  for  having 
suspended  specie  payments ;  and  came  upon  a  demurrer  to  the  defend- 
ant's plea.     The  pleadings  are  as  follows  : 

DECLARATION. 


State  of  South  Carolina,      ^       t      -, 
„  T^  '       >      io  wit. 

Charleston  District.         ) 


The  State  of  South  Carolina  sent  to  the  sheriff  of  Charleston  district  aforesaid, 
its  writ  in  these  words,  that  is  to  say :  The  State  of  South  Carolina,  to  all  and 
singular  the  sheriiFs  of  the  said  State,  greetinfj:  Whereas,  in  and  by  a  certain  Act 
of  the  General  Assembly  of  the  said  State,  duly  made  and  ratified  on  the  seven- 
teenth daj'  of  December,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
thirty- four,  entitled  "  An  Act  to  establish  and  incorporate  another  bank  in  the 
city  of  Charleston,"  after  reciting  that  it  was  beneficial  to  the  citizens  of  the  said 
State,  that  another  bank  should  be  established  in  the  city  of  Charleston,*  r^xio 
in  the  district  of  Charleston  and  State  aforesaid,  it  was  provided  and  '- 
enacted,  that  subscriptions  should  be  n^ccived  for  the  purpose  of  raising  the  sum  of 
two  millions  of  dollars,  to  constitute  the  capital  stock  of  the  said  bank,  by  certain 
persons,  at  certain  places  and  on  certain  days,  in  the  said  Act  mentioned  and  speci- 
fied ;  and  that  all  subscribers  to  the  said  capital  stock,  paying  their  subscription 
moneys  respectively,  and  all  persons  who  might  afterwards  become  stockholders  in 
the  said  company,  upon  complying  with  certain  terms  and  conditions  precedent,  in 
tlie  said  Act  mentioned,  should  be,  and  were  thereby,  incorporated,  and  made  a 
corporation  and  body  politic,  by  the  name  and  style  of  "  The  Bank  of  Cliarleston, 
South  Carolina,"  and  should  so  continue  until  the  first  day  of  June,  in  the  year 

Note.     The  pleadings  are  given  entire  in  this  case,  believing  that  they  will  be 
acceptable  to  the  profession,  as  valuable  precedents  for  future  reference. — Rep. 
(a)  See  Tlie  State  vs.  Bank  of  South  Carolina,  1  Sp.  433,  537.     An. 


628      CHARLFSTO^",  FEBRUARY,  1842,   VOL.  II.     [*440 

of  Piir  Lord  one  thousand  eight  hundred  and  fifty-six  ;  with  power  <at  any  time, 
before  the   expiration  of   the   charter    of  the    said  Bank   of   Charleston,   South 
Carolina,  to  extend  the  amount  of  the  capital  stock  subscribed  to  a  further  sum 
of  two  millions  of  dollars.     And  in  and  by  the  said  Act  of  the  General  Assembly 
aforesaid,  the  said  State  did,  amongst  other  things,  give  and  grant  unto  the  said 
Bank   of    Charleston,    South   Carolina,   the    liberties,   privileges    and    franchises 
following,  that  is  to  say :  to  be  a  corporation  and  body  politic,  and  by  the  name 
and  style  aforesaid  to  be  capable  in  law  to  have,  purchase,  receive,  possess,  enjoy 
and  retain,  to  it  and  its  successors,  lands,  rents,  tenements,  hereditaments,  goods, 
chattels,  promissory  notes,   bills   of  exchange,  and   all  other   choses   in  action, 
moneys  and  eflects,  of  what  kind,  nature   or  quality  soever,  Jo  an  amount  not 
exceeding,  in  the  whole,  three  times  the  amount  of  the  capital  stock  of  the  said 
corporation,  and  the  same  to  sell,  alien  or  dispose  of;  and  also  to  sue  and  be 
sued,  implead  and  be  impleaded,  defend  and  be  defended,  in  Courts  of  record,  or 
any  other  place  whatsoever;  and  also,  to  make,  hare  arid  use,  a  common  seal,  and 
the  same  to  break,  alter  and  renew,  at  pleasure  ;  and  to  discount  i)romissory  notes, 
at  a  rate  of  interest  not  exceeding  one  per  cent,  for  every  sixty  days,  and  to  deal 
and  trade  in  bills  of  exchange  ;  and  also  to  ordain,  establish  and  put  in  execution, 
such  by-laws,  ordinances  and  regulations  as  shall  seem  necessary  and  convenient, 
^  ■  ■-■-■  *for  the  government  of  the  said  corporation,  not  being  contrary  to  the  laws 
-'  of  this  State  or  of  the  United  States  ;  and  generally  to  do  and  execute,  all 
and  singular,  such  acts,  matters  and  things,  which  may  be  deemed  necessary  and 
proper  for  the  good  government  and  management  of  the  said  corporation ;  subject 
nevertheless  to  such  regulations,  restrictions,  limitations  and  provisoes,  as  shall 
hereafter  be  prescril)ed  and  declared.     And  in  and  by  the  provisions  of  the  said 
Act  of  the  General  Assembly  aforesaid,  the  said  State  did  further  give  and  grant 
unto  the   said   Bank   of  Charleston,   South  Carolina,   the  liberty,  privilege   and 
franchise   of  receiving   and  holding   moneys   on  deposit ;    and  also  the  liberty, 
privilege  and  franchise   of  issuing  promissory  notes  and  bills  of  credit,  in  the 
nature  of  a  circulating  medium,  payable  on  demand  when  due,  in  gold  and  silver 
current  coin  of  the  said  State  ;  provided,  that  no  bill  or  promissory  note,  for  the 
payment   of  money,   should  be  issued  by  the  said  Bank  of  Charleston,   South 
Carolina,  of  a  less  denomination  or  of  a  less  amount  than  the  sum  of  five  dollars. 
And  in   and  by  the  said  Act    of  the    General  Assembly  aforesaid,  it  was   also 
provided  and  enacted,  that  thirteen  directors  should  be  annually  elected  by  the 
stockholders  of  the  said  Bank  of  Charleston,  South  Carolina,  and  that  the  said 
directors  should  choose  one  of  their  own  number  as  president ;   and  tliat  the  said 
I)resident  and  directors  should  exercise  such  powers  and  authorities  for  the  well 
government  and  ordering  of  the  officers  of  the  said  corporation,   as  should  be 
prescri})cd,  fixed  and  determined  by  the  laws  and  regulations  thereof.     All  which, 
in  and  by  the  said  Act  of  the  General  Assembly  aforesaid,  reference  being  there- 
unto had,   will,  amongst  other   things,  more    fully  and  at  large  appear.     And 
wliereas,  after  the  making  and  ratification  of  the  said  Act  of  the  General  Assembly 
aforesaid,  the  subscribers  to  the  capital  stock  aforesaid,  and  other  persons,  being 
Htockliolders  in  tlie  said  Company,  having  complied  with  and  fulfilled  the  conditions 
j)recedent  aforesaid,  in  the  said  Act  prescribed,  commenced  business  as  an  incor- 
porated l)ank  in  the  city  of  Charleston  aforesaid,  in  the  district  and  State  aforesaid; 
and  from  the)\ce  hitlierto,  to  wit,  for  the  space  of  five  years  last  past  and  upwards, 
*4421  '*'■  *^*^  ^^^^  "^  Charleston  aforesaid,  in  the  'district  and  State  aforesaid,  the 
said  Bank  of  Charleston,  Soutb  Carolina,  by  virtue  of  the  said  Act  of  the 
fJeneral  Asseiiil)ly  aforesaid,  did  use,  and  still  doth  use,  the  liberties,  privileges 
and  francliises  following,  that  is  to  say:  of  being  a  corporation  and  body  politic, 
in  law  and  in  fact,  by  the  name  and  style  aforesaid;  and,  as  such  corporation  and 
])ody  jxilitic,  of  issuing  pronussory  notes  and  bills  of  ciedit,  in  the  nature  of  a 
circulating  medium  ;  of  receiving  and  liolding  moneys  on  deposits  ;  of  disccmnting 
])romissory  notes  ;  of  dealing  and  trading  in  bills  of  exchange  ;  and  of  carrying 
<m  anil  transacting  sudi  other  moneyed  operations  and  banking  business,  as  are 
usually   carried     on,    transacted    and    i)erformed    ))y   incorporated    banks.       And 
whereas,  we  are  given  to  understand,  that  after  the   said  Bank  of  Charleston, 
Soutli  Carolina,  had  commenced  business  as  an  incorporated  bank,  as  aforesaid,  to 
wit,  on  the  eigliteciith  day  of  May,  in  tlie  year  of  our  Lord  one  tliousand  eight 


'442] 


STATE    VS.    BANK    OF    CHARLESTON.  629 


hundred  and  thirty-seven,  at  the  city  of  Charleston  aforesaid,  in  the  district  and 
State  aforesaid,  the  said  Bank  of  Charleston,  South  Carolina,  having,  hefore  that 
thne,  put  forth  and  issued,  and  having  then  and  there  outstanding  and  in  circula- 
tion, as  part  of  the  actual  currency  of  tlae  said  State,  the  promissory  notes  and 
hills  of  credit,  in  the  nature  of  a  circulating  medium,  of  the  said  Bank  of 
Charleston,  South  Carolina,  so  put  forth  and  issued  as  aforesaid,  to  a  large 
amount,  to  wit :  to  the  amount  of  one  million  of  dollars  and  more,  and  having 
also,  before  that  time,  received,  and  then  and  there  having  and  holding,  on 
deposit,  divers  other  large  sums  of  money,  amounting  in  the  whole,  to  the  sum  of 
eight  hundred  thousand  dollars  and  more,  for  and  on  account  of  divers  citizens 
of  the  said  State  and  others  ;  the  president  and  directors  of  the  said  Bank  of 
Charleston,  South  Carolina,  resolved  to  suspend  the  i)ayment  in  gold  and  silver, 
legal  current  coin  of  the  said  State,  as  well  of  all  promissory  notes  and  bills  of 
credit,  in  the  nature  of  a  circulating  medium,  put  forth  and  issued  by  the  said 
Bank  of  Charleston,  South  Carolina,  and  of  all  moneys  received  and  held  by  the 
Bank  of  Charleston,  South  Carolina,  on  deposit,  as  of  all  other  debts,  dues, 
obligations  and  liabilities,  whatsoever,  of  the  said  Bank  of  Charleston,  South 
Carolina;  and  then  and  there  declared  the  determination  *of  the  said  Bank  ry^iA^ 
of  Charleston,  South  Carolina,  to  suspend  and  refuse  the  payment  in  gold  '- 
and  silver,  legal  current  coin  of  the  said  State,  of  the  promissory  notes  and  bills 
of  credit,  in  the  nature  of  a  circulating  medium,  of  the  said  Bank  of  Charleston, 
South  CaroUna,  and  of  all  moneys  received  and  held  by  the  said  Bank  of  Charleston, 
South  Carolina,  on  deposit ;  and  that  the  said  Bank  of  Charleston,  South  Carolina, 
from  the  said  eighteenth  day  of  May,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  thirty-seven,  until  the  first  day  of  September,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  thirty-eight,  at  the  city  of  Charleston 
aforesaid,  in  the  district  and  State  aforesaid,  continually  did  refuse,  on  demand 
made  at  the  banking  house  of  the  said  Bank  of  Charleston,  South  Carolina, 
during  the  regular  hours  of  doing  business,  to  redeem  or  pay  in  gold  or  silver, 
legal  current  coin  of  the  said  State,  the  promissory  notes  and  bills  of  credit,  in  the 
nature  of  a  circulating  medium,  of  the  said  Bank  of  Charleston,  South  Carolina, 
which  had  been  put  forth  and  issued  by  the  said  Bank  of  Charleston,  South 
Carolina,  and  did  also  then  and  there  refuse  to  pay  in  the  said  coin  the  moneys 
received  and  held  by  the  said  Bank  of  Charleston,  South  Carolina,  on  deposit ; 
and  during  all  the  time  last  aforesaid,  the  said  Bank  of  Charleston,  South  Carolina, 
at  the  city  of  Charleston,  aforesaid,  in  the  district  and  State  aforesaid,  continued, 
nevertheless,  to  put  forth  and  issue  the  promissory  notes  and  bills  of  credit  of  the 
said  Bank  of  Charleston,  South  Carolina,  in  the  nature  of  a  circulating  medium, 
to  receive  moneys  on  deposit,  to  discount  promissory  notes,  to  deal  and  trade  in 
bills  of  exchange,  and  to  carry  on  and  transact  such  other  moneyed  operations 
and  banking  business  as  are  usually  carried  on  and  transacted  by  incorporated 
banks,  and  then  and  there,  during  all  the  said  time  last  mentioned,  jjaid  out,  as 
money,  upon  such  deposits,  discounts  and  other  banking  operations  and  transac- 
tions, the  promissory  notes  and  bills  of  credit  of  the  said  Bank  of  Charleston, 
South  Carolina,  and  of  other  incorporated  banks  which  had  also  then  suspended 
payments  in  legal  current  coin.  To  the  great  damage  of  all  the  good  citizens  of 
the  said  State  ;  in  violation  of  the  trusts  and  conditions  of  the  charter  of  incor- 
poration granted  to  the  said  Bank  of  ^Charleston,  South  Carolina,  by  the  r»±±A 
said  Act  of  the  General  Assembly  aforesaid,  and  to  the  utter  perversion  of  ^ 
the  ends,  objects  and  purposes  for  which  the  powers,  authorities,  liberties,  privileges 
and  franchises  aforesaid,  were  given  and  granted  to  the  said  Bank  of  Charleston, 
South  Carolina,  as  aforesaid. 

And  whereas,  also,  in  and  by  another  Act  of  the  General  Assembly  of  the  said 
State,  duly  made  and  ratified  on  the  eighteenth  day  of  December,  in  the  year  of 
our  Lord,  one  thousand  eiglit  hundred  and  forty,  entitled  "An  Act  to  provide 
against  the  suspension  of  specie  payments  by  the  banks  of  this  State,"  it  was, 
amongst  other  things,  provided  and  enacted,  that  the  provisions  of  the  said  last 
mentioned  Act  should  be  and  become  a  part  of  the  charter  of  every  bank  already 
incorporated  within  the  said  State,  which  should  accept  the  same  ;  and  that  every 
bank  in  the  said  State  which  had  heretofore  suspended  the  payment  of  its  notes 
in  legal  coin,  or  which  had  declared  its  determination  to  refuse  or  suspend  such 


630  CHARLESTON,  FEBRUARY,  1842.      VOL.  II.  [*444 

payment,  should,  on  or  before  the  first  day  of  March  next  after  the  ratification  of 
the  said  last  mentioned  Act,  notify  the  Governor  of  the  said  State  of  its  accept- 
ance of  the  provisions  of  the  said"  last  mentioned  Act ;  and  that  in  case  any  such 
bank  should  neglect  to  give  such  notice,  the  said  Governor  should  forthwith  cause 
legal  proceedings  to  be  instituted  against  such  bank,  for  the  purpose  of  vacating 
and  declaring  void  its  charter.  And  whereas,  we  are  further  given  to  understand, 
that  although  the  said  first  day  of  March  next  after  the  ratification  of  the  said 
last  mentioned  Act  hath  elapsed,  the  said  Bank  of  Charleston,  South  Carolina, 
not  only  hath  not  as  yet  notified  the  Governor  of  the  said  State  of  its  acceptance 
of  the  provisions  of  the  said  last  mentioned  Act,  but.  on  the  contrary  thereof,  at 
a  general  meeting  of  tlie  stockholders  of  the  said  Bank  of  Charleston,  South 
Carolina,  duly  called,  according  to  the  provisions  of  the  charter  aforesaid  of  the 
said  Bank  of  Charleston,  South  Carolina,  and  held  in  the  city  of  Charleston 
aforesaid,  in  the  district  and  State  aforesaid,  on  the  twenty-seventh  day  of 
February,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  forty-one,  the 
said  stockholders,  by  a  resolution  duly  made  and  adopted,  absolutely  refused  to 
*accept  the  provisions  of  the  said  last  mentioned  Act,  as  a  part  of  the 
-'  charter  of  the  said  Bank  of  Charleston,  South  Carolina. 

By  reason  of  which  said  several  premises,  the  charter  of  incorporation  aforesaid, 
and  all  the  powers,  authorities,  privileges  and  franchises,  in  and  by  the  said  first 
mentioned  Act  of  the  General  Assembly  aforesaid,  given  and  granted  to  the  said 
Bank  of  Charleston,  South  Carolina,  as  aforesaid,  have  become  forfeited  to  the 
said  State,  and  are  and  ought  to  be  forfeited  and  made  void,  and  of  no  force  and 
effect  in  law  ;  and  the  said  charter  of  incorporation,  and  all  the  said  powers, 
authorities,  liberties,  privileges  and  franchises  ought  to  be  repealed,  revoked  and 
annulled.  And  we  being  willing  that  what  is  j  ust  and  right  should  be  done  in 
the  premises,  you  and  each  of  you  are  hereby  commanded,  that  by  good  and 
lawful  men,  of  your  and  each  of  your  respective  districts,  you  give  notice  to  the 
said  Bank  of  Charleston,  South  Carolina,  to  be  and  appear  before  the  justices  of 
the  said  State,  at  the  Court  of  Common  Pleas,  to  be  holden  at  Charleston,  in  the 
district  of  Charleston  and  State  aforesaid,  on  the  first  Monday  in  May  next,  to 
show  cause,  if  any  cause  the  said  Bank  of  Charleston,  South  Carolina,  can  show, 
wliy  the  said  charter  of  incorporation,  and  all  the  powers,  authorities,  liberties, 
privileges  and  franchises  aforesaid,  in  and  by  the  said  first  mentioned  Act  of  the 
General  Assemlily  aforesaid,  given  and  granted  to  the  said  Bank  of  Charleston, 
South  Carolina,  as  aforesaid,  should  not  be  forfeited  to  the  said  State,  and  be 
repealed,  revoked,  annulled  and  declared  void  and  of  no  force  and  elfect  in  law. 
And  have  you  this  writ  before  the  clerk  of  the  said  Court,  at  Cliarleston  aforesaid, 
fifteen  days  next  before  the  sitting  thereof.  Witness,  B.  R.  Carroll,  Esq.,  clerk 
of  the  Court  at  Cliarleston,  the  twelfth  day  of  April,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  forty-one,  and  of  American  Independence  the  sixty-fifth. 

At  which  said  first  Monday  in  May,  in  the  year  of  our  Lord  one  thousand  eight 
liundred  and  forty-one,  comes  here  Henry  Bailey,  Attorney  General  of  the  said 
State,  and  on  behalf  of  the  said  State  oflers  himself  against  the  said  Bank  of 
*44("1  ^^i''^'"l*^ston.  South  Carolina,  of  the  plea  aforesaid ;  *  and  the  said  sheriff,  to 
■^  wit:  Alexander  H.  Browx,  Sheriff  of  Charleston  district  aforesaid,  now 
liere,  returns  tliat  lie  hath  in  due  form  of  law  given  notice  to  the  said  Bank  of 
Charleston.  Hoiitli  Carolina,  to  be  liere,  on  the  said  day  in  the  said  writ  mentioned, 
to  shdw,  as  l)y  tin;  said  writ  the  said  Bank  of  Charleston,  South  C  aiolina,  is  com- 
niandi"! :  and  the  said  Bank  of  Charleston,  South  Carolina,  being  solemnly 
(ieniaiided,  ai)i)ears  by  Petigru  &  Lesesne,  its  attorneys.  Whereupon,  the  said 
IIknky  Bailkv,  Attorney  tJeneral  as  aforesaid,  on  behalf  of  the  said  State,  prays 
judgment  against  the  said  Bank  of  Charleston,  South  Carolina,  and  that  the 
diartcr  of  iiK^orporation  aforesaid,  and  all  the  powers,  authorities,  liberties, 
privileges  and  IVancliiscs,  aforesaid,  given  and  granted  unto  tlie  said  Bank  of 
Charbston,  South  Carolina,  a.s  aforesaid,  may  be  n'pealed,  revoked,  annulled,  and 
declared  void  and  of  no  force  and  effect  in  law. 

Plea. 

And  the  said  The  Bank  of  Cliarleston,  South  Carolina,  by  Pktigru  and  Lesksnk, 
their  altorueys,  come  ami  make  protestation,  that  there  is  not  any  such  provision 


^446] 


STATE   VS.    BANK    OF   CHARLESTON.  631 


in  the  Act  of  the  General  Assembly,  made  on  the  seTentoenth  day  of  December, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  thirty-four,  declaring  the 
bills  of  credit  or  promissory  notes,  thereby  authorized  to  be  issued  by  the  said 
The  Bank  of  Charleston,  South  Carolina,  to  be  in  the  nature  of  a  circulating 
medium,  and  making  the  payment  of  the  same,  on  dentand,  in  gold  and  silver 

.  coin,  a  condition  annexeil  to  the  grant  of  the  franchise  of  being  a  corporation, 
and  tl'at  the  matters  contained  in  the  said  writ  of  srire  /arias  are  insufficient  in 
law,  and  that  the  said  The  Bank  of  Charleston,  South  Carolina,  is  not  bound  by 
the  law  of  the  land  to  answer  thereto  ;  for  plea,  nevertheless,  the  said  The  Bank 
of  Charleston,  South  Carolina,  say :  that  the  franchises  conferred  by  the  said  Act 
of  the  seventeenth  day  of  December,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  thirty-four,  ought  not  to  be  seized  by  the  State  and  taken  away  from 
the  said  The  Bank  of  Charleston,  South  Carolina,  nor  the  said  charter  revoked ; 
*because,  they  say,  that  after  the  first  day  of  September,  in  the  year  of  our  r^^^- 
Lord  one  thousand  eight  hundred  and  thirty-eight,  that  is  to  say,  on  the  '- 
twenty-first  day  of  December,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  thirty-nine,  by  a  certain  Act  of  the  said  General  Assembly,  entitled  An  Act 
to  extend  the  time  of  payment  of  the  last  instalment  of  the  increased  capital  of 
the  l^ank  of  Charleston,  South  Carolina,  it  was  enacted,  that  the  last  instalment 
of  fifty  dollars  on  the  increased  capital  stock  of  the  Bank  of  Charleston,  South 
Carolina,  should  be  paid  at  such  time  as  the  president  and  directors  might  call 
therefor,  as  by  the  said  Act,  among  other  things,  relation  being  thereunto  had, 
doth  fully  appear ;   by  reason   whereof,  the  charter    of  the   said  The    Bank   of 

,  Charleston,  South  Carolina,  is  confirmed,  made  good,  available  and  of  perfect 
force,  to  all  the  citizens  of  this  State,  according  to  the  true  intent  and  meaning  of 
the  said  Act  of  Assembly.  All  which  the  said  Bank  is  ready  to  verify,  and 
therefore  demand  judgment,  whether  the  said  charter  should  be  revoked,  or  the 
franchise  of  being  a  cori)oration  seized  by  the  said  State,  and  so  forth. 

To  this  plea  the  Attorney  General,  on  behalf  of  the  State,  demurred 
generally,  and  the  defendant  joined  in  deumrrer. 

Judgment  of  the  Circuit  Court. 

Butler,  J.  This  ease  is  distinguished  from  that  of  the  State  against 
The  Bank  of  South  Carolina,  in  the  }>articulars  set  forth  in  the  defend- 
ant's special  plea,  and  should  therefore  be  decided  on  its  own  separate 
merits.  I  am  satisfied  that  the  special  plea  of  the  defendant  is  a  suQi- 
cient  and  valid  bar  to  the  proceedings  of  the  plaintiff;  and  I  therefore 
overrule  the  ])laintiCf's  demurrer,  and  award  judgment  for  the  defendant 
on  the  plea. 

The  Attorney  General,  on  behalf  of  the  State,  appeals  from  the  judgment  of  his 
Honor,  and  moves  that  tlie  same  may  be  reversed,  and  judgment  awarded  for  the 
State,  on  the  several  grounds  of  appeal  taken  from  the  judgment  of  his  Honor  in 
the  case  of  The  State  against  The  Bank  of  South  Carolina,  which  is  above  referred 
to  by  him,  a  copy  *of  which  judgment  and  grounds  of  appeal  is  hereunto  r* 44c 
annexed  ;   and  upon  the  further  ground  :  '- 

That  the  matters  set  forth  in  the  plea  of  the  defendant,  in  the  present  case,  do 
not  constitute  a  bar  to  the  action  of  the  State. 

Curia,  per  Harper,  Ch.  If  the  charter  of  the  defendants  was  for- 
feited by  the  suspension  of  specie  payments  in  1837,  and  the  forfeiture 
were  incurred  from  the  time  of  the  act  committed,  we  are  of  opinion  that 
the  Act  of  1839,  which  is  pleaded,  must  be  regarded  as  a  waiver  of  the 
forfeiture.  If  the  process  of  quo  warranto  would  be  a  proper  one  to 
try  the  question  of  forfeiture,  it  follows  of  necessity  that  the  forfeiture  is 
regarded  in  law  as  incurred  from  the  time  of  the  act  committed.  The 
very  foundation  of  the  proceeding  is,  that  the  defendants  are  guilty  of 


632  CHARLESTON,  FEBRUARY,  1842.      VOL.  II.  [*448 

usurpation,  by  exercising  their  corporate  francliise  after  the  act  by  which 
forfeiture  is  incurred. 

la  the  case  of  The  King  vs.  The  City  of  London,  so  mucli  referred 
to  on  both  sides,  and  which  is  the  earliest  case  we  have  upon  the  subject, 
to  the  quo  warranto,  the  city  pleaded  its  charter.  To  this  the  Attorney . 
General  replied  the  acts  which  were  relied  on  as  the  causes  of  forfeiture, 
and  concluded  "by  which  the  mayor,  commonalty  and  citizens,  the  privi- 
lege, liberty  and  franchise  of  being  a  body  politic  and  corporate,  did 
forfeit,  and  afterwards,  by  the  time  in  the  information,  that  liberty  and 
franchise  of  being  a  corporation  did  usurp  upon  the  King;"  and  ac- 
cording to  this  was  the  judgment  of  the  Court.  8  Cobbett's  State 
Trials,  1071.  It  was  objected  by  Sir  George  Treby,  the  City  Recorder, 
that  if  the  defendants  were  charged  with  usurpation  and  not  being  a 
corporation,  whether  by  forfeiture  or  otherwise,  the  information  should 
uot  have  been  against  the  city  by  its  corporate  name,  but  against  par- 
ticular persons — the  individuals  composing  the  pretended  corporation. 
Ibid.  1118.  To  which  Sir  Robert  Sawyer  replied,  that  until  seizure 
they  continued  a  corporation  de  facto.  Ibid.  1154.  Both  seem  to  agree 
that  de  jure,  the  forfeiture  is  incurred  from  the  time  of  the  act  committed. 
Sir  James  Smith's  case  is  relied  upon  as  tending  to  show  that  the  quo 
*iiQl  worrayito  is  not  the  proper  process,  and  that  the  ^corporation 
-'  continues  till  judgment.  The  question  in  that  case,  as  reported 
in  4  Mod.  58,  seems  to  be  wiih  respect  to  the  validity  of  the  judgment 
against  the  City  of  London.  Lord  Holt  is  made  to  say — "  A  corpora- 
tion may  be  dissolved,  for  'tis  created  upon  a  trust  ;  and  if  that  be 
broken,  'tis  forfeited  ;  but  a  judgment  of  seizure  cannot  be  proper  in 
such  case — for  if  it  be  dissolved,  to  what  purpose  should  it  be  seized." 

"  Therefore,  by  this  judgment  in  the  quo  ivarranto,  the  corporation 
was  not  dissolved  ;  for  it  doth  neither  extinguish  nor  dissolve  the  body 
politic." 

"Whenever  any  judgment  is  given  for  the  King,  for  a  liberty  which  is 
usurped,  'tis  quoad  extinguatur,  and  that  the  person  who  usurped  such 
a  privilege,  Hibertat,  ch-.,'  nulla  tenus  intromittat,  &c.,  which  is  the 
judgment  of  ouster.  But  the  quo  ivarranto  must  be  brought  against 
particular  persons."  But  if  the  quo  warranto  must  be  brought  against 
particular  persons,  it  should  seem  to  follow  that  by  forfeiture,  the  corpo- 
ration is  dissolved  both  de  facto  and  de  jure.  This  would  be  a  most 
dangerous  doctrine,  especially  with  regard  to  banlvs,  whose  contracts  and 
transactions  with  third  persons  are  so  numerous.  But  in  Skinner,  311, 
(where  the  judgment  is  more  fully  reported  under  the  title  of  the  King 
vs.  Tlie  City  uf  London;)  nothing  of  this  sort  appears,  and  the  judg- 
ment is  made  to  turn  on  a  totally  diiferent  point.  It  is  said,  the  decision 
must  depend,  not  on  the  judgment  which  was  actually  entered,  but  on  the 
recital  (jX  it  in  the  Act  of  Parliament  restoring  the  privileges  of  the  city 
of  London.  The  statute  recites  the  judgment,  "the  which  is,  that  the 
liberty,  francliisc,  and  privilege  of  the  city  of  London,  being  a  body 
politic,  may  be  seized" — instead  of  "the  liberty,  &c.,  of  being  a  body 
politic."  The  statute  was  held  to  be  conclusive,  that  the  body  politic 
continued  to  exist;  for  a  corporation  may  continue  to  exist,  though  de- 
prived of  its  franchises. 

The  case  of  the   King  vs.  Amery,  2  T.   R.   515,  was  one  in  which 


^449] 


STATE    VS,    BANK    OF   CHARLESTON.  633 


there  was  a  judgment  on  a  quo  warranto  against  the  City  of  Chester, 
similar  to  that  against  the  City  of  Loudon — that  "the  liberties,  &c., 
shonld  be  seized"  but  "  quosque,"  until  the  further  order  of  the  Court. 
Against  the  judgment  it  was  argued  that  there  could  be  no  judgment 
*  of  seizure  undev  the  quo  ivarranto  ;  if  any,  it  should  have  been  r:(<irrv 
a  judgment  of  ouster — that  when  corporations  legally  created,  ^ 
abuse  any  of  the  franchises  to  which  they  are  entitled,  or  usurp  others  to 
which  they  have  no  claim,  there  tlie  information  is  brought  against  the 
corporation  as  such,  and  their  judgment  of  seizure  is  given.  But  when 
a  body  of  men  assume  to  themselves  to  be  a  corporation,  by  any  given 
name,  and  an  information  is  brought  against  them,  it  must  l)e  by  their 
individual  names.  To  which  it  was  replied  that  the  corporate  name  is 
only  a  description  of  the  persons  sued  ;  they  continue  a  corporation  de 
facto  till  judgment ;  and  that  only  can  decide  whether  they  be  such  or 
not.  The  Court  held  that,  the  corporation  not  having  appeared,  the 
judgment  against  the  city  of  Chester  was  final  and  conclusive,  and  the 
King  having  granted  a  new  charter,  the  subsequent  restoration  of  the  old 
charter  was  null  and  void. 

This  judgment  was  reversed  in  the  House  of  Lords — not  on  the 
ground  of  any  irregularity  in  the  process  of  quo  warranto  or  judgment 
of  seizure  ;  but,  as  I  learn  from  Kyd's  Treatise  on  Corporations,  (2  vol. 
510 — the  report  of  the  case  is  said  to  be  published  in  two  volumes, 
quarto — )  on  the  ground  that  the  efi'ect  of  the  judgment  quosque  was 
only  to  suspend  the  use  of  the  corporate  franchises,  so  that  the  king 
might  appoint  a  custos,  but  not  grant  a  new  charter  ;  and  by  the  charter 
of  pardon  and  restitution  of  the  old  charter,  the  king's  hands  were  re- 
moved. The  authority  is  fully  in  point  as  to  the  process  and  the 
judgment. 

The  judgment  of  the  Court  was  delivered  by  Ashurst,  Justice,  and  I 
cannot  regard  what  is  said  by  him  in  the  later  case,  of  the  King  vs. 
Parmon,  3  T.  R.  244,  as  inconsistent  with  it,  or  intended  to  impugn  it. 
In  that  case,  where  an  integral  part  of  the  corporation  was  gone,  which 
it  had  no  power  to  restore,  it  was  held  ipso  facto  dissolved.  The  Judge 
says,  "  It  was  argued  that  admitting  the  old  corporation  to  be  in  a  state 
to  be  dissolved,  that  could  not  be  effected  without  a  scire  facias  to 
repeal  the  former  grant,  or  a  judgment  on  a  quo  icarranio.  But  I  think 
those  modes  are  only  necessary  to  be  pursued  in  the  following  cases.  A 
scire  facias  is  proper  when  there  is  a  legal  existing  body  capable  of 
acting,  but  who  have  been  guilty  of  an  abuse  of  *the  power  en-  r^^ci 
trusted  to  them,  &c.  And  a  quo  tvarranto  is  necessary  when  ^ 
there  is  a  body  corporate  de  facto,  who  take  upon  themselves  to  act  as  a 
body  corporate,  but  who,  from  some  defect  in  their  constitution,  cannot 
legally  exercise  the  powers  they  affect  to  use."  I  do  not  very  well 
understand  what  may  be  meant  by  "  some  defect  in  their  constitution," 
but  the  whole  is  said  incidentally  as  matter  of  argument,  to  show  the 
absurdity  of  requiring  such  formal  proceeding  to  dissolve  a  body  which 
is  already  extinct. 

All  the  elementary  authorities  take  it  for  granted,  as  the  familiar 
law,  that  this  is  the  proper  j)rocess  when  there  has  been  a  forfeiture 
for  abuse,  as  well  as  when  there  was  an  original  usurpation.  So  it 
is  said    1  Bl.    Com.   485,  that  a  charter  may  be  forfeited  by  neglect 


634  CHARLESTON,  FEBRUARY,  1842.      VOL.  H.  [*451 

or  abuse,  and  "  that  the  rejjular  course  is  to  bring  an  information  in 
nature  of  a  writ  quo  imrranto,  to  inquire  by  what  warrant  the  members 
noic  exercise  their  corporate  power,  having  forfeited  it  by  such  and  such 
proceedings."  The  same  thing  is  laid  down  with  equal  explicitness  by 
Kyd,  2  vol.  395,  403-4.  So  it  is  said  by  Justice  Story  in  Terrett  vs. 
Taylor,  962,  51,  "  A  private  corporation,  created  by  the  Legislature  may 
lose  its  franchises  by  a  misuser  or  nonuser  of  them,  and  they  may  be 
resumed  by  the  government  under  a  judicial  judgment  upon  a  quo  war- 
ranto.'" The  various  American  cases  brought  to  our  view,  from  New- 
York,  from  Pennsylvania,  from  Alabama  and  Indiana,  were  proceedings 
by  quo  icarronio,  to  enforce  a  forfeiture  for  abuse,  and  in  none  of  them 
is  it  questioned  to  be  the  pro])er  process.  In  short,  I  have  found  no 
case  or  authority,  in  which  there  is  a  doubt  or  suggestion  to  that  effect, 
or  that  the  continuing  to  exercise  the  corporate  franchises  after  an  act  of 
forfeiture,  is  not  an  usurpation. 

Then  tlie  bank,  though  forfeited,  in  contemplation  of  law,  continued  to 
exist,  de  facto,  so  as  to  render  its  transactions  valid.  And  this  is  by  no 
means  a  thing  unknown  to  our  law.  Such  is  the  familiar  case  of  admi- 
nistration granted,  when  there  is  a  will  and  executor;  the  acts  of  the 
administrator  are  valid  until  his  appointment  be  revoked.  Such  too  is 
the  case  of  public  officers  who  have  failed  to  take  prescribed  oaths.  The 
^  ,f,-,  banks  thus  existing,  the  Act  *of  1839(o)  was  passed,  which  pro- 
-J  vides  "that  the  last  instalment  of  fifty  dollars  on  the  increased 
capital  stock  of  the  Bank  of  Charleston  may  be  paid  at  such  time  as  the 
president  and  directors  may  call  therefor,  on  notice  of  one  month,  pub- 
lished in  two  or  more  of  the  public  gazettes  in  Charleston."  The  origi- 
nal charter  required  those  instalments  to  be  paid  at  a  specified  time. 
Now  it  is  not  possible  that  any  implication  could  be  more  absolutely 
necessary — if  indeed  it  can  be  called  implication — than  that  by  virtue  of 
the  Act,  the  bank  shall  be  and  continue  a  corporation,  for  the  purpose  of 
fuxing  the  time  for  calling  in  the  instalments,  and  giving  the  notice;  and 
of  course  for  the  purpose  of  exercising  the  other  functions  to  which  this 
is  merely  accessary,  the  power  is  granted  indefinitely  as  to  term.  But 
wlien  the  Lffjislalwe,  by  law,  declares  that  a  corporation  siiall  continue 
to  exist,  can  it  be  doubted  that  this  is  a  waiver  of  a  previous  forfeiture  ? 
To  say  that  a  corporation  existing  by  authority  of  law,  is  not  a  corpora- 
tion dejure,  would  be  an  absurdity  in  terms.  The  case  of  The  People 
vs  The  Manhatian  Co.  9  Wendall,  351,  is  an  authority  expressly  in 
point,  that  a  forfeiture  may  be  waived  by  a  subscqueui  act  of  the  Legis- 
lature, recognizing  the  existence  of  the  corporation. 

I  am  inclined  to  think,  too,  that  the  adoption  by  the  Legislature  of 
tlic  report  of  the  Committee  of  Ways  and  Means,  of  the  20th  Dec.  1837, 
was  a  waiver  of  this  forfeiture.  It  appears  from  the  report  that  the 
Governor  had  communicated  to  the  Legislature  the  fact  of  the  suspen- 
sion of  specie  i)ayments  by  the  banks  of  the  State,  with  an  exposition  of 
the  reasons  for  the  step  they  had  taken.  This  ))art  of  the  message  was 
referred  to  the  Committee,  who  reported  that  they  feel  satisfied  that  the 
Banks  are  entillcd  to  ])nblic  confidence,  which  report  was  concurred  in 
by  both  branches  of  the  Legislature,  The  Comptroller  General  also 
communicated  the  same  inl'ormation  to  the   Legislature.     I  think  this 

(a)  11  Stat.  42.     An. 


*452J  CARMILI.E  VS.  ADM'r.  OF  CARMILLE  ET  AL.  635 

must  be  interpreted  into  an  approval  of  the  conduct  of  the  banks,  I  do 
Lot  know  any  particular  manner  by  which  a  party  entitled  to  a  forfeiture 
may  waive  it.  Wiiatever  is  clearly  sig-nificant  of  the  intention,  I  suppose, 
will  be  sufficient.  In  Web.^ier  vs.  Banni^trr,  Doug.  394,  the  forfeiture 
of  an  annuity  bond  was  *  waived  by  parol  and  giving  day  to  the  r:^.A-o 
obligor.  I  do  not  know  that  the  Legislature  must  waive  by  law.  L 
It  may  by  resolution  direct  its  officer  to  ])roceed  to  enforce  the  forfeiture  ; 
and  by  parity  of  reason,  it  may  direct  him  to  forl)ear  and  remit  the 
penalty.  And  certainly,  when  the  pardon  or  amnesty  is  once  granted,  it 
cannot  be  recalled.  It  has  passed  in  rem  actam.  To  hold  the  contrary, 
would  work  tiie  utmost  injustice  to  persons  who  may  have  become  hold- 
ers of  stock  on  the  faith  of  the  legislative  amnesty. 

After  these  proceedings  of  the  Legislature,  it  is  scarcely  necessary  to 
investigate  the  question  of  notice  to  it  of  the  act  of  forfeiture.  It  is 
ordered  that  the  demurrer  be  overruled,  and  the  judgment  affirmed. 

D.  Johnson  and  Dunkin,  Chancellors,  Richarpson,  O'Neall,  But- 
ler and  Wardlaw,  Justices,  concurred.  J.  Johnston,  Ch  ,  and  Earle, 
J.,  absent. 


U  THE  COURT  OF  ERIIORS  FROM  EQUITY. 


Julia  E.  Carmille  vs.  The  Administrator  of  John   Car-  [*454 
MiLLE,  Geo.  Pringle,  et  al. 

Where  one  in  his  lifetime  was  seized  and  possessed  of  certain  slaves,  to  wit: — 
"  Henrietta  and  lier  four  children,  Charlotte,  Francis,  Nancy,  John,  and  Eliza- 
beth, and  also  Tilly  and  Mary" — and  by  deed  bearing  date  26  February,  1830, 
for  a  nominal  consideration,  assigns  to  tlie  defendants,  P.  &  C.  the  said  negroes, 
Henrietta,  and  her  four  children  (as  above  named)  on  the  special  trust,  confi- 
dence and  condition,  that  they  will  from  time  to  time  and  at  all  times  hereafter, 
permit  and  suffer  the  negroes  above  named,  or  any  or  all  of  them,  and  also  the 
future  issue  and  increase  of  the  females,  to  seek  out  and  procure  employment, 
and  to  work  for  tlieir  own  maintenance  and  support,  and  further  in  trust  to 
allow  them  the  said  negroes,  &c.,  to  receive  and  take  for  their  sole  use  and  ben- 
efit, all  such  moneys  as  they  might  obtain  for  their  labor  or  otherwise,  after 
paying  to  the  trustees  the  sum  of  one  dollar  per  annum  and  no  more.  The 
other  deed  purports  to  convey  to  the  same  trustees  the  slaves  Tilly  and  Mary, 
in  trust,  to  apply  their  labor  to  the  use  of  Henrietta  and  her  children  as  afore- 
said, until  hor  youngest  child  shall  come  to  the  age  of  twenty-one  years,  and 
then  to  sell  the  slaves  Tilly  and  Mary,  and  divide  the  proceeds  between  Henri- 
etta and  liei- diildren,  share  and  sliare  alike.     It  ivas  hel'l, 

1.  That  the  deeds  were  good,  and  sufficient  to  vest  the  title  to  the  slaves  in  the 
defendants.  That  tlie  negroes  mentioned,  viz.  :  Henrietta  and  her  children, 
are  .still  slaves  under  tlie  dominion  of  their  masters,  and  must  so  remain. 

2.  That  if  the  defendants  should  give  tluui,  under  the  deeds,  the  fruits  of  their 
labor,  it  is  not  unlawful. 

3.  That  the  second  deed  is  a  good  common  law  conveyance  to  the  defendants  of 
the  two  slaves,  Tilly  and  Mary,  for  the  use  of  other  slaves. 

4.  That  by  the  laws  of  this  State,  slaves  may  ;u.upiire  and  hold  in  possession  per- 


636  CHARLESTO^^  FEBRUARY,  1842.      VOL.  II.  [*454 

sonal  property  (not  prohibited  to  them  by  Act  of  the  Legislature)  with  the  con- 
sent of  their  "master  or  mistress.  And  such  property  is  in  law  to  be  regarded 
as  the  property  of  the  owner  of  the  slave. 

Before  Dunkin,  Ch.,  at  Charleston,  June,  1839. 

The  following:  decree  was  pronounced  by  his  Honor,  and  will  explain 
fully  the  facts  of  the  case  and  the  important  questions  involved. 

John  Carmille  died  in  July,  1833.  After  his  decease  a  paper  was  pro- 
pounded for  probate,  as  his  will.  It  was  dated  11  th  July,  1832,  and  by 
it  he  gave  all  his  estate  to  his  slave  Henrietta,  and  her  children,  direct- 
ing  his  executors  to  emancipate  them,  if  it  could  be  legally  done  and  if  it 
could  not  be  done  within  fifteen  years,  to  send  them  away,  and  set  them 
at  liberty  in  some  country  where  it  could  be  done.  The  paper  was 
rejected,  on  the  ground,  that  subsequent  to  the  execution,  Carmille  had 
married,  and  had  issue.  Letters  of  administration  were  granted  to  Wil- 
liam Wightman,  and  upon  his  death,  to  Thomas  F.  Purse.  It  appeared, 
^Ap:--]  ffora  the  testimony,  that  on  the  1st  or  *2d  of  March,  1830,  Car- 
-^  mille  was  married  to  Margaret  Arnott.  with  whom  he  lived 
for  about  ten  months,  when  his  wife  died,  leaving  the  complainant  sur- 
viving her,  the  issue  of  the  marriage. 

Not  including  the  slaves,  hereinafter  to  be  mentioned,  the  personal 
estate  of  the  intestate  consisted  of  some  articles  of  household  furniture, 
&c.,  and  an  outstanding  debt;  amounting,  altogether,  to  between  six 
and  seven  hundred  dollars.  The  debts  due  by  the  estate  amounted  to 
about  $1000.  He  left  also  a  house  and  lot  on  Meeting-street  road,  and  one 
hundred  and  eleven  acres  of  land  on  Goose  Creek.  In  addition  to  this 
])roperty,  the  intestate,  at  the  time  of  his  death,  was  in  possession  of  the 
slave  Henrietta  and  her  children,  (four  mulattoes,)  Charlotte,  Francis, 
Nancy,  and  John,  and  Elizabeth,  the  child  of  Nancy,  and  also  of  Phillis, 
or  Tilly,  and  Mary.  On  the  death' of  the  intestate  these  slaves  went  into 
the  possession  of  the  defendants,  George  Pringle  and  Philip  Chartrand, 
and  arc  held  by  them  under  deeds  from  John  Carmille.  The  object  of 
this  bill  is  to  set  aside  those  deeds,  and  subject  the  slaves,  in  the  first 
place,  to  the  ])ayment  of  the  debts  of  the  intestate,  and  to  have  the  sur- 
plus paid  or  delivered  to  the  complainant,  as  next  of  kin.  The  first  deed 
bears  date  the  2r)th  February,  1830,  and  for  a  nominal  consideration, 
assigns  to  the  defendants,  Pringle  and  Chartrand,  "  the  said  negroes, 
Henrietta,  Charlotte,  Francis,  Nancy,  and  John,"  on  the  special  trust, 
confidence  and  condition,  that  they  will,  from  time  to  time,  and  at  all 
times,  iiereafter,  jiermit  and  suffer  the  negroes  above  named,  or  any  or 
all  of  them,  and  also  the  future  issue  and  increase  of  the  females,  to  seek 
out  and  procure  em[)loyment,  and  to  work  out  for  their  own  maintenance 
and  support ;  and  further,  in  trust,  to  allow  them,  the  said  negroes,  &c  , 
to  receive  and  take,  for  their  sole  use  and  benefit,  all  such  moneys  as  they 
might  obtain  for  tlieir  labor,  (ir  otherwise,  "after  paying  to  the  trustees 
the  sum  of  one  dollar  per  annum,  and  no  more."  The  second  deed  bears 
date  on  the  same  day  with  the  former  deed,  refers  to  it,  and  purports  to 
convey  to  the  same  trustees  the  slaves  Tilly  and  ]Mary,  in  trust,  to  api)ly 
their  laljor  to  the  use  of  Henrietta  and  her  children,  until  her  youngest 
child  shall  come  to  the  age  of  twi'iity-onc  years,  and  then  to  sell  the  slaves 
Tilly  and  Mary,  and  divide  the  proceeds  between  Henrietta  and  her  chil- 


^455] 


CARMILLE  VS.  ADM'r  OF  CARMILLE  ET  AL.  G37 


dren,  share  and  share  alike.     These  deeds  were  not  proved,  or  recorded, 
until  22d  July,  1833,  after  the  death  of  Carmille. 

*It  ap))cars  to  the  Court  too  clear  to  admit  of  argument,  that  rt.  j^p 
the  bill  of  sale  of  Henrietta  and  het  children,  is  an  undisguised  '- 
attemi)t  to  evade  the  law  of  this  State,  forbidding  emancipation,  "a  law, 
which,"  as  was  said  in  Fable  and  Brrnon,  "however  harsh  it  may  appear 
to  those  who  have  no  opportunity  of  forming  a  judgment  on  the  suljject,  is 
founded  on  jirinciples  of  trne  humanity,  as  well  as  just  policy."  The 
trusts  created  by  this  deed,  cannot  be  carried  into  execution  without 
effectually  violating  the  })olicy,  and  defeating  the  objects  of  the  law. 
The  trusts  must,  therefore,  fail.  The  consequence  is  succinctly  as  de- 
clared by  Lord  Elden,  in  3Iorice  vs.  The  Bishop  of  Durham,  10  Yes. 
535,  "  If  the  testator  meant  to  create  a  trust,  and  not  to  make  an  abso- 
lute gift,  but  the  trust  is  inefiTectually  created,  is  not  expressed  at  all,  or 
fails,  the  next  of  kin  take."  The  object  of  the  second  deed  was  merely 
to  carry  into  effect  and  complete  the  purposes  of  the  former  deed,  and 
must  fall  with  it.  2  Story  Eq.  44,  3.  The  slaves  Tilly  and  Mary,  are 
to  be  held  in  trust  for  Henrietta  and  children,  who  are  also  slaves.  "  The 
the  title  is  not  changed,  but  the  title  and  ]iossession  must  be  referred  to 
the  Master."     Fable  vs.  Broicn,  2  Hill's  C.  R.  397. 

It  is  ordered  and  decreed,  that  the  negroes  mentioned  in  the  pleadings, 
be  delivered  up  by  the  defendants,  George  Pringle  and  Phili]i  Chartrand, 
for  the  purpose  of  being  administered  as  part  of  the  estate  of  John  Car- 
mille, deceased  ;  that  the  accounts  of  William  Wightraan,  deceased,  the 
former  administrator,  and  of  Thomas  F.  Purse,  the  administrator  de  bonis 
von,  of  John  Carmille,  deceased,  be  referred  to  the  Commissioner  of  this 
Court,  to  report  thereon.  Parties  to  be  at  liberty  to  apply  for  such 
further  orders  as  may  be  necessary  for  the  final  settlement  of  the  estate. 

The  defendants  appeal  in  tliis  case,  on  the  grounds  ; 

1.  Beciuise  t'lie  remedy  is  at  law,  and  the  bill  ought  to  have  been  dismissed. 

2.  The  right  of  action  is  in  the  administrator,  and  not  in  the  heir. 

^3.  The  deeds  to  defi'tidants  were  valid,  and  if  the  trust  failed,  tlie  conveyance 
became  absolute. 

4.  If  the  title  was  defective  under  the  deed,  the  defect  was  cured  by  the 
lapse  of  time. 

5.  That  under  the  case  of  Frnzn-  vs.  Frnzer,  2  Hill's  C.  R.  .31.^,  *the  r*)-- 
defendaiits  have  a  right  to  send  the  negroes  out  of  the  State,  for  the  ^  "" 
purposes  of  emancipation. 

6.  That  the  decree  is  erroneous,  and  ought  to  be  rectified. 

Grimke,  for  the  mntion.  The  first  deed  bears  date  the  2rith  February,  1830. 
By  the  prenmea  it  l)ar<,'ains,  sells  and  delivers  to  Pringle  and  Chartrand,  Henrietta 
and  lier  four  children.  To  have  and  to  liohl  thi;  said  negroes  with  their  issue  unto 
the  said  Pringle  and  Chartrand,  and  the  survivor  of  them,  and  the  executors, 
administrators  and  assigns  of  such  survivor,  forever.  Tlien  follows,  in  the  "terms 
of  stipulation"  a  condition,  which,  in  the  language  of  the  chancellor,  we  will  ad- 
mit to  be  an  undisguised  attempt  to  evade  the  law. 

The  second  deed  bears  date  on  the  same  day,  between  the  same  parties,  and  in 
like  manner  bargains,  sells  and  delivers  to  the  said  Pringle  and  Chartrand,  two 
negro  slaves,  Phillis  and  Mary.  To  have  and  to  hold  the  said  negroes,  with  their 
issue,  unto  the  said  Pringh^  and  Chartrand,  and  the  survivor  of  them,  and  the 
executors,  administrators  and  assigns  of  such  survivor,  forever.  Tlien  follows,  in 
the  "terms  of  stipulation"  a  condition,  that  the  wages  of  said  slaves  shall  be 
applied  to  the  use  and  benefit  of  the  said  Henrietta  and  children. 

The  case  then  is  simply  this.     By  the  premises  of  the  deed  the  bargain  and  sale 


638  CHARLESTON,  FEBRUARY,  1842.      VOL.  II.  [*457 

is  made  in  positive  and  distinct  terms.  By  the  hahendum  the  estate  created  is  ab- 
solute in  the  grantees,  viz.  :  "  to  them  and  tlie  survivors  of  them,;  and  the  execu- 
tors, administrators  and  assign's  of  such  survivor,  forever.  To  these  premises  and 
to  the  habendum,  whicli  are  perfect  and  .complete,  the  grantor  has  chosen  in  the 
"terms  of  stipulation"  to  embody  a  condition,  which  (for  the  sake  of  argument) 
he  knew  could  not  be  performed  without  violating  the  existing  law. 

The  condition  is  subsequent,  not  precedent.  By  the  execution  of  the  deeds, 
the  estate  became  immediately  vested. 

The  words  of  the  deeds  in  the  "terms  of  stipulation"  are — "In  trust  neverthe- 
less to,  for  and  upon  the  special  use,  trust,  confidence,  and  condition."  Of  the 
terms  here  used,  the  word  condition  is  the  one  of  most  extensive  signification, 
and  comes  last. 

The  rule  is,  that  whenever  a  word  of  limited  signification  is  used  last  in  a  sen- 
tence, and  a  word  of  extensive  signification  first,  the  last  controls  and  restricts 
the  first.  But  where  the  word  of  most  extensive  signification  comes  last,  it  en- 
^.-o-i  larges  all  preceding  'and  more  limited  words,  and  in  fact  merges  them  all 

"^  -'  in  itself.  By  this,  which  I  take  to  be  the  true  rule  both  in  law  and  criti- 
cism, we  must  read  the  clause  as  if  it  contained  no  other  word  than  the  word 
condition. 

To  the  facts  above  stated,  it  is  only  necessary  to  add  that  under  the  issue 
ordered  by  the  Court  of  Errors  at  February  Term,  1840,  the  jury  by  their  verdict 
established  the  due  execution  and  delivery  of  the  deeds. 

Out  of  these  facts  arises  the  question,  what  is  the  law  ? 

By  the  civil  law  the  complainant  would  stand  no  chance.  But  what  says  Lord 
Coke,  the  oracle  of  the  law,  and  indeed  every  other  judge  or  elementary  writer  in 
England  or  America,  from  his  time  to  the  present  day.  ' '  That  where  the  condi- 
tion is  illegal,  the  condition  is  void  and  the  estate  is  good." 

"Conditions  against  law  are  void,"  1  Just.  206,  20,  "Conditions  repugnant  to 
the  estate,  impossible,  &c.,  are  void,  and  if  they  go  before  the  estate,  the  estate 
and  condition  are  void ;  if  to  follow  it,  the  estate  is  absolute,  and  the  condition 
void.     1  Just.  206,  9.  Rep.  128." 

The  reason  why  a  condition  contrary  to  law  is  void,  and  the  deed  good,  is  simply, 
that  there  had  been  no  violation  of  law  in  the  execution  of  the  deed,  and  could  be 
none  until  tlu;  performance  of  the  condition  was  attempted  or  accomplished  ;  for 
this  reason  the  law  merely  relieves  the  party  from  the  performance  of  the  condi- 
tion, and  leaves  the  deed  itself  absolute  in  its  original  terms.  The  law  can  only, 
and  seeks  only  to  avoid  that  part  of  a  deed,  which  being  either  mula  in  se,  or  mala 
pro/iibita,  interferes  with  its  enactments.  That  portion  of  the  deed  being  void,  or 
mere  surplusage,  leaves  the  rest,  or  legal  part,  of  course,  in  full  force  and  virtue. 
Even  the  Act  of  1820,  expressly  enacted  with  a  view  to  this  special  matter,  does 
not  pretend  to  impair  the  validity  of  the  deed,  but  merely  prohibits  a  particu- 
lar act. 

In  hu/ralidm  and  Porter,  4  McC.  200,  the  court  say,  where  the  hahendum  of  a 
deed  is  wholly  inconsistent  with  and  repugnant  to  the  premises,  so  that  they  can- 
not stand  together,  the  luihendum  must  be  considered  as  void,  and  if  the  premises 
pass  any  thing  the  grantee  shall  hold. 

Now  in  the  deed  executed  by  Carmille,  as  in  the  one  in  the  case  of  Ingraham 
and  Porter,  executed  by  Daniel  Porter,  the  property  is  given  absolutely  and  in 
prc.sciiti.  In  J'orter's  case  the  liahtndum  was  inconsistent  with  the  jiremises,  and 
*4r>91  "'"  '■"'"■'^  *tlierefore  declared  that  it  could  not  take  etiect.  But  in  the 
cas(!  now  b(;fore  the  court,  the  habendum  is  consistent  with  the  premises, 
and  they  arc  botli  ])crfect  and  complete  ;  the  estate  conveyed  there  does  take 
cllect,  by  vesting  in  Pririgle  and  Chartrand  a  present  interest,  and  an  absolute 
entate  ;  and  that  estate  untrammelled  and  uncontrolled  by  any  illegal  condition, 
inserted  in  the  terms  of  stipulation. 

Tlu!  formal  parts  of  a  deed  are,  1.  Tlie  premises.  2,  The  hahendum,  which 
det(!rniinr!H  wliat  estate  or  interest  is  granted.  .3.  The  terms  of  stipulation,  which 
prescribe  the  conditions  or  terms  upon  whicli  a  grant  is  made.  4.  Warranty.  5. 
Covenants.     (J.  Conclusion. 

The  first  part  of  a  deed  lias  priority  in  law  as  well  as  in  fact.  3  Dyer,  272  ;  14 
Viner,  51,  50,  lOU,  141,  145. 


*459]  CARMILLE  VS.  ADM'r  OF  CARMILLE  ET  AL.  639 

Judge  IIiTOKK,  in  delivering  tlio  opinion  of  the  Court  of  Appeals,  Harp.  L.  R. 
493-4,  uses  the  following  language,  —  "Where  the  premises  of  a  deed  arc  not 
complete  and  perfect,  resort  must  be  had  to  the  hahend ma  to  ascertain  the  inten- 
tion of  the  parties.  It  may  then  limit  or.  extend  or  frustrate  the  premises.  But 
when  the  premises  are  complete  and  perfect,  and  the  habendinn  is  at  variance  with 
them,  and  they  cannot  stand  together,  the  hdbendum  is  void,"  not  the  deed. 

When  Carmille  executed  the  deed,  ho  knew  the  law.  I  don't  mean  merely  the 
common  jiresumption,  that  ho,  like  every  other  man,  knew  the  law,  but  his  will 
shows  that  he  was  fully  aware  of  the  Act  of  1820,  and  his  counsel  who  drew  the 
deeds,  advised  him  of  their  eifect.  lie  knew  then  that  the  deed  he  executed  was 
a  deed  of  gift,  conveying  and  intended  to  convey  an  absolute  and  indefeasible  es- 
tate to  the  grantees.  By  the  deeds  then,  and  under  our  own  decisions,  as  I  shall 
presently  show,  Carmille  divested  himself,  his  heirs  and  assigns,  of  all  interest 
and  estate  which  he  held  in  the  property,  and  passed  to  the  grantees  an  interest 
in  present!,  which  might  have  been  levied  upon  and  sold  by  the  sheriff,  for  the 
debts  of  Pringle  or  Chartrand,  or  which,  under  certain  circumstances,  might  have 
been  attached  by  their  creditors. 

Carmille  left  property,  besides  these  negroes,  amply  sufficient  to  pay  his  debts. 
His  creditors  are  not  claiming. 

But  suppose  the  creditors  of  Pringle  and  Chartrand  were  before  the  court,  under 
an  issue  made  up  to  try  the   right  of  property,  as  between  them  on  the  one  part, 
and  Carmille  in  his  life  *time,  or  his  heir  or  legatee,  after  his  death,  on  the   r^Anr, 
other.     Can  there  be  a  doubt  as  to  what  would  be  the  instruction  of  the   '- 
court  to  the  jury,  under  the  evidence  as  now  adduced? 

Suppose  Carmille  in  his  lifetime,  had  brought  an  action  of  trover  against  Prin- 
gle and  Chartrand  for  these  negroes.  Would  not  he  have  been  estopped  by  the 
deeds  ?  If  he  would  have  been,  then  all  those  claiming  under  him  are  so  likewise. 
And  allow  me  to  ask  the  attention  of  this  court  to  the  opinion  of  the  Court  of 
Appeals,  as  delivered  by  Mr.  Justice  O'Neall,  in  the  case  of  Cline  and  Caldwell, 
1  Hill,  425,  6,  in  which  opinion  the  present  Judges,  David  Joh.xsox  and  Wji. 
Hakper,  concurred ;  and  under  the  law  as  there  laid  down,  how  is  there  any 
possibility  of  this  court  coming  to  the  conclusion  that  the  present  claimant  can 
recover.  What  says  the  court  in  that  case  at  p.  425. — "  That  the  deed  from  Jos. 
Caldwell  to  Cato  Gallman  was  good  as  against  the  grantor,  and  all  those  (claiming 
as  volunteers  under  him,  even  if  it  had  been  intended  as  an  evasion  of  the  Act 
of  1820." 

Again,  at  p.  426. — "  The  defendant,  his  principal  and  the  intestate,  are  all  in 
the  place  of  Caldwell,  and  take  no  other  or  better  title  than  he  had  himself  ;  after 
he  had  conveyed  to  Cato  Gallman,  he  had  none,  and  they  of  course  had  none.''' 
Just  so  here  the  complainant  can  take  no  other  or  better  title  than  Carmille  him- 
self had,  after  he  had  conveyed  to  Pringle  and  Chartrand,  the  defendants.  He 
had  7ione,  and  she  of  course  has  none.  How  then,  I  would  most  respectfully 
submit,  can  lier  claim  to  this  property,  in  which  it  is  decided  she  has  no  title,  be 
sustained  ? 

It  is  said,  however,  that  to  sustain  the  deed  is  contrary  to  the  policy  of  the 
country,  and  at  war  with  our  peculiar  institutions.  W'ith  this  the  court  has 
nothing  to  do.  The  province  of  the  Bench  is  to  declare  what  the  law  is  ;  not 
what  it  ought  to  be.  But  I  deny  the  position  as  to  the  policy  of  the  measure 
AVhat  is  the  court  asked  to  do  ?  What  is  the  question  before  the  court  ?  Is  it 
whether  these  negroes  are  bond  or  free  ?  No.  It  is  simply  whether  they  are  the 
slaves  of  the  plaintiff,  or  the  defendants.  This  is  the  only  issue  made  by  the 
pleadings  and  by  the  evidence,  and  can  the  court  travel  beyond  these,  and  base 
their  decision  on  Mdiat  may  or  may  not  be  presumed  to  be  the  intention  of  the 
parties,  after  the  judgment  of  the  court  is  pronounced  ?  Besides,  if  presumptions 
are  to  have  any  weight,  I  *would  ask  of  the  parties  before  the  court,  which  r^Ac-i 
is  it  most  likely  would  be  most  willing  to  carry  out  this  attempt  to  evade  '- 
the  law  ;  viz.,  whether  the  defendants,  jierfect  strangei-s  to  the  negroes  and  to 
Carmille,  would  be  most  anxious  to  tly  in  the  face  of  the  law  of  the  land,  or 
whether  the  complainant  would  be  willing  to  hold  in  the  bonds  of  servitude,  and 
bind  with  the  chains  of  slavery,  two  brothers  and  sisters  of  the  half  blood  ?     So 


640  CHARLESTON,  FEBRUARY,  1842.      VOL.  II.  [*461 

much  for  the  morale  and  policy  of  the  case,  with  which,  however,  we  have  nothing 
to  do. 

Take  the  case  of  A,  the  owner  of  a  menagerie  of  great  value,  composed  of 
animals /rce  at ferocissimce  naturce,  and  he  was  to  execute  a  deed  thereof  to  B,  in 
the  language  of  the  premises  and  hahencJnm  of  this  deed,  and  in  the  terms  of 
stipulation  he  was  to  insert  words  to  the  following  effect,  viz. :  "In  trust,  never- 
tlieless,  and  to,  for,  and  upon  the  special  use,  trust,  confidence,  and  condition" 
that  the  grantee  within  ten  days  should  turn  the  wild  heasts  out  in  the  public 
square.  The  deed  is  signed,  sealed,  and  delivered,  and  the  grantee  takes  posses- 
sion, and  after  the  expiration  of  the  ten  days  he  gives  the  grantor  notice  that  he 
intends  to  keep  the  animals,  and  to  exhibit  them  for  his  own  benefit,  and  proceeds 
to  do  so.  A  then  brings  his  action  vs.  B.  The  deeds  are  produced,  and  the  Court 
find  B  in  possession  of  the  deeds  and  of  the  property,  (as  in  the  present  case.) 
"What,  I  would  ask,  would  be  the  judgment  of  the  Court  ? 

The  fact  is,  that  in  the  deeds  now  before  the  Court,  the  premises  and  Jiabendum 
being  "perfect  and  complete,"  the  terms  of  stipulation  must  be  regarded  merely 
as  surplusage,  being  nothing  but  the  expression  of  a  wish  or  a  direction,  which 
the  party  at  the 'time  of  making  it,  knew  to  be  idle  and  useless.  The  deeds, 
therefore,  are  valid  to  pass  the  estate,  and  the  negroes  are  the  slaves  of  the  de- 
fendants. A  gift,  if  you  please ;  but  where  is  the  law  which  says  a  man  shall 
not  give  away  his  own  property  ?  and  a  gift,  even  in  exclusion  of  the  legal  heirs  ; 
but  show  me  the  statute  which  prohibits  a  man,  either  by  deed  or  will,  from  disin- 
heriting all  or  any  of  his  children  ? 

The  case  of  the  Bishop  of  Durham  in  10  V.  is  relied  on,  and  is  indeed  the  foun- 
dation of  the  complainant's  argument. 

jN'ow,  I  would  respectfully  submit  that  the  decision  in  that  case  is  no  authority 
in  this.  It  may  be  very  good  law  for  Westminster  Hall,  but  not  for  this  country. 
In  England,  chancery  makes  and  models  men's  wills  to  suit  their  own  notions  of 
j^Ac-i^-,   *the  law  of  the  land  and  the  i^olicy  of  the  government,  and  vouchsafes  to 

""  -'  allow  no  trust  but  such  as  they  can  meddle  with,  and  execute  or  annul. 
The  grand  feature  of  our  government  and  the  ruling  principle  of  our  jurisprudence 
is,  that  the  magistrate  does  not  interfere  with  the  jirivate  coircerns  of  the  individual. 

The  reasons  as  connected  with  the  policy  of  the  government,  not  the  people, 
which  influence  the  judgment  of  the  Court  at  Westminster  Hall,  do  not  exist  in 
this  country.  Our  Chancery  is  not  the  Chancery  of  that  Bench,  and  indeed 
English  law  has  nothing  to  do  with  this  case,  and  the  less  weight  it  has  in  this 
country,  in  this  or  any  other  case,  the  better.  We  have  never  departed  from  the 
beaten  path  of  British  jurisprudence  but  the  efTeet  has  been  to  elevate  tlie  stand- 
ard and  improve  the  condition  of  the  law.  What  they  gave  us  as  a  sealed  book, 
we  have  made  an  open  letter.  The  temple  of  justice  here  is  dedicated,  not  to  a 
king  and  a  great  landed  aristocracy,  but  to  the  sovereign  people. 

The  law  of  the  land  here  is,  that  the  owner  of  property  has  the  right  of  parting 
with  the  possession,  and  either  by  deed  or  by  will,  of  divesting  himself,  his  heirs 
and  assigns,  of  all  title  and  estate  therein.  Where  is  the  statute  here,  or  even  a 
decision  of  our  courts,  which  gainsays  this  position ;  and  in  England  where  gifts 
in  mortmain  were  against  the  policy  of  the  government?  But  even  there,  did 
tlie  Court  declare  those  gifts  void  until  the  statute  had  said  so  ? 

In  this  State,  where  a  mai)  gives  to  anotlier,  for  an  object  which  is  contrary  to 
law,  the  C(,urt  of  Appeals,  in  ('line  and  CaldweJI,  and  Linam  and  Johnson,  have 
said,  lotidim  rcrhis,  the  title  has  x>'issed  from  him  and  his  heirs  for  ever.  Where 
tlien  is  the  descent  to  the  heir  or  the  title  to  the  adnunistrator  ? 

The  Court  then,  under  the  law,  as  shown  to  be  settled  by  their  own  decisions, 
cannot  say  the  heir  shall  take,  nor  can  they  make  a  title  for  the  administrator. 
Tliey  must  then  leave  the  projierty  where  tliey  found  it,  in  the  hands  of  the 
grantee ;  ho  taking  it,  as  both  grantor  and  grantee  knew,  at  the  time  of  the  exe- 
cution of  the  deed,  under  a  condition  or  trust,  if  you  please,  which  being  con- 
trary to  law  is  void,  and  the  execution  of  which  would  subject  liim  personally  to 
the  pains  and  jjenallies  of  the  law,  if  any,  in  such  case  made  and  jjrovided. 

Till!  sole  (.lijecl  of  {he.  present  proceeding  is  to  revert  tlie  title  to  the  property 

#_j(..^,  in  llie  administrator  or  the  heir,  which  by  the  cases  *  above  quoted  it  has 

been  shown  was  out  of  the  ancestor  at  the  time  of  his  death.     This  clearly 


'463] 


CARMILLE  VS.  ADM'k  OF  CAKMILLE  ET  AL.  641 


could  not  have  been  done  for  the  ancestor,  if  he  had  asked  it  in  his  lifetime,  and 
it  thercfon!  cannot  be  done  for  the  heir  after  his  death  ;  it  is  beyond  oven  the 
extraordinary  powers  of  the  Court  of  Clianciuy.  And,  if  it  could  have  been 
done  for  the  ancestor,  where  would  have  been  tlie  reason  or  sense  of  the  Act, 
which  would  have  given  property  back  to  a  man  who  had  shown  himself,  in  the 
very  act  by  which  he  divested  himself  of  the  title,  viz.,  to  use  the  language  of 
the  cliaucellor,  by  an  undisguised  attempt  to  evade  the  law,  as  utterly  unworthy 
of  the  trust  and  responsibilities  which  the  possession  of  property  necessarily 
imposes  ? 

But  again,  the  case  of  the  Bishop  of  Durham  is  a  case  of  a  trust  under  a  will ; 
this  is  the  case  of  a  condition  in  a  deed.  The  Bishop  came  into  court  with  the 
property  in  his  possession,  as  sole  executor.  It  has  been  urged  that  this  is  a 
trust,  not  a  condition  ;  now  although  every  condition  is  not  a  trust,  yet  every 
trust  is  a  condition.  But  as  I  have  said,  this  is  the  case  of  a  will ;  so  are  the 
cases  of  Bostick  and  Walker  Fable  and  Brown,  lloveij  and  Deas,  Monks  and  Field, 
and  liham'e  and  Dangerjield.  But  the  cases  of  Linaia  and  Johnson,  and  Cline  and 
Caldwell,  were  cases  of  deeds,  and  the  deeds  were  sustained. 

And  again,  the  case  of  the  I3ishop  of  Durham  don't  apply,  even  admitting  that 
its  authority  has  been,  as  is  too  often  the  case,  followed  by  American  j  udges, 
merely  because  it  is  English  law. 

The  question  which  is  made  in  this  case  could  not  legitimately  have  arisen  in 
that.  In  that  case,  as  is  stated  in  9  Ves.  p.  397,  "The  Bishop,  by  his  answer, 
expressly  disclaimed  any  beneficial  interest  in  himself  personally."  A  case  is 
only  authority  in  reference  to  the  issues  made  by  the  pleadings,  and  can  be  re- 
garded as  settling  no  other  principles  than  such  as  are  involved  in  those  issues. 

And  I  almost  feel  warranted  in  saying,  that  if  a  case  like  that  of  the  Bishop  of 
Durham  came  up  before  American  judges  for  their  consideration,  and  if  it  could 
receive,  as  it  would  deserve,  a  fair  and  candid  deliberation,  unbiassed  by  English 
law,  and  untrammelled  by  English  decisions,  that  the  judgment  of  an  American 
court  would  be  the  reverse  of  the  Lord  Chancellor's  decree. 

Another  aspect  in  which  this  case  is  to  be  viewed  is  presented  by  that  portion  of 
the  bill  which  pra^'S  that  the  deeds  may  be  set  *aside,  and  one  ground  r^^g^ 
taken  is,  "that  the  same  are  void  and  unavailing,  so  far  as  they  dispose  of 
more  than  one-fourth  part  of  the  clear  value  of  the  estate  of  the  said  John  Car- 
mille,  after  payment  of  his  debts,  under  and  by  virtue  of  the  Act  of  Assembly, 
entitled,  'An  Act  to  provide  for  the  maintenance  of  illegitimate  children,  and  for 
other  purposes  therein  mentioned, '  inasmuch  as  the  said  deeds  were  made  for  the 
use  and  benefit  of  a  woman,  the  said  Henrietta,  with  whom  Carmille  lived  in  adul- 
tery, and  for  the  use  and  benefit  of  his  bastard  children  by  her."  This  ground, 
it  seems  to  me,  may  be  dismissed  with  a  single  remark.  In  the  first  place,  at  the 
time  of  the  execution  of  the  deeds,  Carmille  had  neither  wife  nor  child  ;  and 
secondly,  Henrietta  being  a  slave,  his  children  by  her  are  not  bastards  in  the  eye 
of  the  law;  the  A.  A.  then  of  '95  does  not  apply. 

The  next  ground  taken  in  the  bill  is,  that  these  deeds  ought  to  be  set  aside,  and 
the  property  ordered  to  be  delivered  up  to  the  administrator  for  the  benefit  of  the 
heir.  First,  because  the  deeds  are  voluntary  and  without  consideration ;  and 
second,  because  tliey  are  on  trust  void  in  law. 

The  Com!  of  Equity  does  sometimes  interfere  on  behalf  of  creditors,  but  it  has 
seldom  happened,  if  this  is  not  the  first  time,  that  application  lias  been  made  to 
the  extraordinary  powers  of  a  Court  of  Chancery  on  behalf  of  a  volunteer  claim- 
ing under  the  grantor,  to  set  aside  a  voluntary  convej-ance. 

A  voluntary  transfer  by  deed  of  a  chattel  in  trust  is  valid,  as  between  the  par-- 
ties,  without  any  consideration  appearing.     Brue  vs.  Wintlirop,  1  John.  C.  R.  329,. 

A  voluntary  deed  of  settlement  fairly  made,  is  always  binding  in  equity  upon 
the  grantor,  unless  there  is  clear  and  decisive  proof  that  he  never  parted,  or 
intended  to  part,  with  the  possession  of  the  deed ;  and  if  he  retains  it,  there  must 
be  other  circumstances  besides  the  mere  fact  of  his  retaining  it,  to  show  that  it 
was  not  intended  to  be  absolute.      Souverbye  vs.  Ardcn,  1  John.  C.  K.  24(i. 

In  the  case  now  before  the  court,  the  deeds  and  the  property  are  both  found  in 
the  possession  of  the  grantee.     Besides,  the  deeds  which  bargain,  sell,  and  deliver 
this  property  to  the  grantees,  bear  date  on  the  2Gth  February,  1830,  on  which  day 
Vol  1—42 


642  CHARLESTON,  FEBRUARY,  1842.       VOL.  IL  [*464 

the  verdict  of  tlie  jury  has  established  their  due  execution,  and  the  hill  in  this 
case  was  not  filed  until  the  16th  of  May,  1835,  a  period  of  more  than  five  years. 
*A  voluntary  conveyance  or  settlement,  though  retained  by  tlie  grantor 
J  in  his  possession  until  his  death,  is  good.     1  John.  Ch.  Kep.  329. 

There  are  many  other  cases  wliich  might  be  referred  to,  but  it  is  useless  to 
multiply  authorities  on  this  point. 

The  Court  of  Equity  here,  like  the  English  Chancery,  has  been  known  to  inter- 
fere with  people's  wills,  but  not  with  deeds,  except  in  cases  of  fraud,  mistake,  or 
where  there  is  great  equity.  Now  this  is  clearly  no  case  of  mistake,  nor  can  we 
discover  any  very  great  equity  in  the  application  which  is  made,  on  behalf  of  one 
child  of  Carmille,  to  obtain  a  decree  declaring  his  four  or  five  other  children 
slaves,  and  ordering  them  to  be  sold. 

Is  it  then  a  case  of  fraud  ?  There  is  no  fraud  as  to  Carmille's  creditors,  for 
there  is  no  proof  that  he  was  in  debt  at  the  time  he  executed  the  deeds,  nor  does 
it  ai^pear  that  they  were  made  with  a  view  to  future  indebtedness.  There  could 
be  no  fraud  as  to  the  heir,  for  Carmille  was  not  even  married  at  the  time. 

"To  invalidate  a  conveyance,  the  party  must  allege  and  prove  it  to  be  fraudu- 
lent," as  said  bv  the  court  in  the  case  of  Jones  and  Briggs  vs.  Blake  and  wife,  2 
Hill's  Ch.  Rep.  629,  at  p.  (336. 

In  tlie  case  of  Smith  and  Henry,  1  Hill,  p.  16,  the  court  declared  the  deeds 
void.  But  that  was  done  on  behalf  of  creditors,  and  for  tlieir  benefit.  Here  the 
creditors  are  not  parties,  except  incidentally,  as  represented  by  the  administrator, 
who  is  one  of  the  defendants,  and  even  he  is  not  claiming  on  their  behalf,  for  it 
is  manifest  that  the  estate  of  the  intestate,  exclusive  of  these  negroes,  is  amply 
sufficient  for  the  payment  of  his  debts  ;  at  any  rate,  if  there  be  a  deficiency  it 
ought  to  have  been  made  to  appear,  but  it  is  in  fact  not  even  alleged. 

The  rule  of  the  court  always  has  been  to  support  rather  than  destroy  an  instru- 
ment that  has  been  fairly  and  solemnly  executed,  and  I  would  respectfully  sub- 
mit tliat  the  bill  ought  to  be  dismissed  as  to  the  defendants  Pringle  and  Chartrand. 

1st.  Because  the  complainant,  as  against  them,  having  made  out  no  case  either 
of  fraud,  mistake,  or  great  equity,  sufiicient  to  imi)air  the  validity  of  the  deeds, 
they  must  stand. 

2d.  Because  her  claim  is  barred  by  the  statute  of  limitations,  more  than  five 
years  having  elapsed  from  the  date  of  the  deeds,  viz.,  26th  February,  1830,  to 
the  filing  of  the  bill  on  the  10th  May,  1835. 

*4fin  ^^'  ^"-^c^iise  the  complainant  could  take  no  other  or  better  *title  than 
-'  Carmille  himself  had,  after  he  had  conveyed  to  Pringle  and  Chartrand  ;  he, 
under  the  cases  of  Cline  and  Caldicell,  and  Linam  and  Johnson,  had  no  title,  and 
slie  of  course  has  none.  She,  therefore,  having  no  interest,  cannot  sustain  the 
bill. 

Ashby,  for  the  motion  also,  said,  1st,  The  conveyance  is  absolute  ;  it  is  a  gift. 
Cited  9  Ves.  232 ;  9  lb.  403.  Gift  for  a  horse  would  not  be  a  trust.  Dud.  220. 
What  difierence  is  there  between  a  gift  for  a  slave  and  for  a  horse  ?  both  are  chat- 
tels, 10  Ves.  536;  Co.  Litt.  207;  2  B.  C.  156,  157;  Foub.  Equ.  B,  1,  c.  4 ;  2 
Wilson,  341 ;  11  Mass.  374;  2  B.  &  Aid.  368. 

A  party  shall  not  avoid  his  own  deed  on  account  of  his  own  fraud.  2  Ves.  Jr. 
IIG ;  3  P.  Wms.  236  ;  6  Ves.  747  ;  2d  ground,  7  Stat,  at  Large,  443  ;  2  lb.  Act 
1820,  139  ;  Bin.  Rep.  196  ;  1  Hill  C.  R.  134 ;  2  Hill  C.  R.  313  ;  3  Leigh,  492 ;  8 
Cranch,  135  ;  5  Page,  114;  3  B.  C.  271  ;  1  Strange,  447.  A  bequest  to  slaves  is 
not  void. 

Mr.  Bailei/.  contra,  cited  Lewer  on  Trusts,  175;  22  L.  Lib.  (New  Series,)  89* 
U  tlie  trust  Void  or  unlawful  ?     Cited  2  J'.  Wms.  361  ;  1  Ves.   108  ;  3  Don.  194 ; 

1  8.  &  S.  290 ;  2  Ves.  &  Beam.  294 ;  18  Ves.  463 ;  3  M,  &  R.  262 ;  1  E.  262  ;  1 
lb.  508  ;  6  Ves.  52;  9  Ves.,  Morrice  v^.  Bishop  of  Durham;  B.  Ab.  Tit.  Con.  399  ; 
97  Law  Lib.;  10  Ves.  527.  If  he  says,  I  give  in  trust,  and  it  cannot  be  ascer- 
tained or  executed,  it  is  for  the  next  of  kin,  328.     1  Sch.  &  Lef.  22  Law  Lib.  84; 

2  At.  156;  6  Ves.  (i8.  A  l^ill  filed  for  the  discovery  of  an  illegal  trust,  a  demur- 
rer will  lie  sustained.  3  M.  3!t'.t ;  2  B.  2(19  ;  1  Vern.  59,  decides  that  eciuity  will 
not  enforce  an  illegal  trust.  1  Bailey,  632.  There  can  be  no  emancipation  until 
the  negroes  are  turned  loose. 


^466] 


CARMILLE  VS.  ADM'r  OF  CARMILLE  ET  AL.  G43 


The  Act  of  '20  makes  the  deed  void.  2  Hill  C.  R.  304;  1  Bailey,  C32,  it  was 
supposed  had  decided  this  very  question. 

The  second  deed,  the  first  deed  being  bad,  must  be  so  too.  2  Devx.  E.  Cas. 
440;   1  lb.  493;   1  Dev.  L.  Rep.  189  ;  2  Law  Repository,  .557  ;  2  Hawk.  120. 

The  A.  A.  1841  settles  the  question.  It  is  retrospective  in  its  operation.  1 
Kent's  Com.  408,  409,  455. 

Hunt,  in  reply,  said  the  law  was  not  retrospective,  but  prospective,  and  admits 
the  law  as  it  formerly  was.  The  legislature  have  no  right  to  pass  such  an  Act,  if 
it  is  refrarded  as  retrospective. 

Mr.  Ihint  contended  that  the  Act  of  '20  was  prospective  by  *every  word,    r*  (^^ 
3  McC.  93.     All  laws  ought  to  be  prospective.     There  is  not  one  of  the   '- 
authorities  of  the  cause  on  the  other  side  that  covers  this  case.     In  any  point  of 
view  he  cont(mded  the  deeds  were  good.     The  ("ourt  of  Equity  does  not  decree 
for  the  distribution  until  administration. 

As  long  as  the  statute  is  iinchanged,  there  is  no  illegality  in  the  trust.  Every 
resulting  trust  must  arise  eo  iiistante  with  the  execution  of  the  deed. 

Curia,  per  O'Neall,  J  .The  case  of  Morrice  vs.  The  Bisliop  of  Dur- 
ham, 9  Yes.  399,  and  the  same  case,  10  Ves.  521,  was  a  trust  to  dispose 
of  the  ultimate  residue  of  the  testatrix's  estate  to  such  objects  of  benevo- 
lence and  liberality  as  the  Bishop  of  Durham  in  his  own  discretion  shall 
most  approve  of;  and  the  Bishop  was  appointed  sole  executor.  The 
master  of  the  rolls  and  the  Lord  Chancellor  ruled  that  this  bequest  was 
a  trust,  and  conferred  no  personal  benefit  on  the  legatee  ;  but  that  it  was 
too  indefinite  in  its  creation,  and  could  not  therefore  be  executed ;  and 
that  as  it  was  an  estate  undisposed  of,  in  the  hands  of  the  executor,  a 
trust  resulted  for  the  next  of  kin.  From  this  summary  of  that  case,  it 
will  be  seen  that  it  cannot  reach  this  case.  For  there,  tiiat  was  a  dispo- 
sition by  will,  and  the  fund  was  in  the  hands  of  the  executor,  whose  whole 
estate  in  equity  is  regarded  as  upon  trust  and  confidence.  So  too  the 
trust  was  not  so  declared  that  the  objects  of  the  testatrix's  bounty  could 
be  ascertained  from  the  will,  and  hence  it  could  not  be  supported.  The 
case  before  us  stands  upon  deeds  executed  and  taking  effect  in  the  life- 
time of  the  intestate,  and  the  case  must  be  considered  as  if  the  intestate 
was  himself  the  complainant,  asking  that  the  deeds  should  be  set  aside. 
Without  appealing  to  foreign  adjudications,  our  own  conclusively  show 
that  such  a  bill  could  not  be  sustained.  For  the  complainant  there 
would  stand  upon  this  footing,  that  he  claimed  to  be  relieved  from  his 
own  act  done  in  fraud  of  the  law.  Such  a  notion  has  no  countenance 
any  where.  That  the  administrater,  and  consequently  the  distributee, 
seeking  to  avoid  their  intestate's  deed  for  fraud,  actual  or  legal,  on  his 
part,  must  claim  in  his  right,  and  cannot  have  any  superior  equities,  have 
been  so  often  decided,  that  it  is  not  necessary  to  cite  authorities  to  prove 
it.  Looking  at  this  case  in  this  point  of  view,  there  could  be  no  diffi- 
culty in  saying  the  complainant  cannot  recover.  But  I  think  the  case 
deserves  to  be  examined  in  *another  aspect,  and  1  am  satisfied 
there  is  nothing  in  any  point  of  view,  in  which  I  am  able  to 
regard  the  case,  which  ought  to  defeat  the  deeds.  The  Act  of  1820(") 
(Acts  of '20,  page  22)  merely  declares  "that  no  slave  shall  hereafter  be 
emancipated  but  by  the  Act  of  the  Legislature."  Here  it  will  be  observed, 
that  the  Act  does  not  declare  a  deed  conferring  emancipation  void.  It 
cuts    off  emancipation   altogether,    except   by   Act.       If   emancipation 

(«)  7  Stat.  459.     An. 


[*468 


644  CHARLESTON,  FEBRUAET,  1842.      VOL.  II.  [*468 

depended  upon  the  execution  of  the  deed  alone,  then  the  deed  being 
wholly  inoperative,  the  slave  in  such  case  would  remain  the  property  of 
the  grantor,  and  no  harm  would  be  done.  But  the  Acts  of  1820  and 
ISOU(a)  are  regarded  in  pari  materia;  and  when  so  construed,  they 
make  this  legal  provision,  that  a  slave  cannot  be  emancipated  in  this 
State,  "but  by  the  Act  of  the  Legidature,^^  and  if  emancipated  without 
an  Act,  that  then  such  slave  so  emancipated,  shall  be  liable  to  seizure 
and  conversion  to  his  own  use  by  any  person.  Frazier  vs.  Frazier,  2 
Hill's  C.  R.  304.  Johnson  vs.  Linam,  2  Bail.  137-  To  constitute  au 
emancipation,  something  more  than  the  execution  of  a  deed  is  necessary  : 
there  must  be  a  "  parting  with  the  possession  of  the  slaves  by  the  owner 
or  owners,"  and  thus  "permitting  them  to  go  at  large  and  act  for  them- 
selves." Lenoir  vs.  Sijivester:  Young  vs.  The  Same,  1  Bail.  G42. 
An  invalid  attempt  to  emancipate,  so  long  as  the  possession  remains 
unchanged,  or  the  slave  is  in  the  possession  of  a  legal  owner,  does  not  sub- 
ject him  to  seizure ;  Cline  vs.  Caldwell,  1  Hill's  Rep.  423.  These 
jn'inciples  have  the  sanction  of  so  many  cases  decided  by  our  own  Court 
of  Appeals,  that  I  suppose  they  will  be  regarded  as  settled  law.  Having 
in  a  greater  or  less  degree  participated  in  the  decision  of  them  all,  I  \till 
not  now  attempt  to  fortify  them  by  any  other  reasoning  than  such  as  is 
contained  in  the  judgments  pronounced  in  them. 

Taking  the  law  to  be  as  I  have  stated  it,  how  can  it  be  pretended 
by  the  distributee  of  the  donor,  that  slaves  which  by  him  have  been  con- 
veyed to  others,  upon  the  trust  and  confidence  that  they  would  suffer  them 
to  work  out  tlieir  own  maintenance,  upon  the  slaves  paying  an  annual 
hire  of  one  dollar,  are  to  be  regarded  as  emancipated  contrary  to  the 
Act  of  1820  ?  They  are  still,  to  all  intents  and  purposes,  slaves.  The 
persons  to  wliom  they  are  conveyed  (Pringle  and  Chartrand)  have  the 
right  to  govern  and  protect  them.  The  hire  which  they  })ay,  h.owever, 
inconsiderable,  is  a  constant  recognition  of  servitude.  At  law,  there 
*ifiQl  "*^^^^"  could  be  a  pretence  that  the  slaves  were  not  the  property* 
-'  of  Pringle  and  Chartrand,  for  at  law  the  trust  would  not  be  noticed, 
unless  it  had  been  executed  by  emancipating  the  slaves.  The  State  vs. 
Jihame  and  others,  Dudley's  Law  Rep.  Bhame  vs  Ferguson  and  others, 
Rice's  Rep.  196.  But  if  it  could,  then  it  is  equally  clear  that  the  donor 
and  those  claiming  under  him,  could  not  at  law  avail  themselves  of  this 
objection.  Cline  vs.  Caldwell,  1  Hill,  423  ;  Chappell  vs.  Brown,  1 
Bail.  528  It  is  only  in  equity  that  the  trust  can  be  looked  to,  and  there 
the  question  arises  which  is  now  made,  is  the  trust  unlawful  ?  and  which,  as 
I  have  already  shown,  would  (if  it  were)  constitute  no  ground  upon 
which  the  deeds  could  be  set  aside.  The  distinction  is,  where  any  thing 
is  to  be  done  to  enforce  an  unlawful  trust,  equity  will  not  set  it  up  or 
enforce  it,  or  in  any  way  aid  its  execution,  even  against  the  party  creating 
it.  But  where  the  case  is  reversed,  and  the  donor  comes  to  be  relieved 
against  it,  his  position,  as  the  party  perpetrating  the  unlawful  act,  closes 
llie  Court  against  him,  and  he  is  left  where  he  ought  to  be,  to  stand  on 
the  law ;  if  that  heli)  him,  it  is  well ;  if  not  he  is  punished,  as  he  deserves 
to  be.  Had  the  Act  of  1820  declared  all  deeds,  upon  trust,  for  the  benefit 
of  slaves,  or  intended  to  secure  their  freedom,  void,  then  the  parties  repre- 

('/)  7  Stilt.  442,  §  7,  8,  9. 


*469]  CARMILLE  VS.  ADM'k  OF  CARMILLE  ET  AL.  645 

senting  the  intestate  would  have  had  no  difficulty.  For  in  that  case  they 
could  have  rested  on  the  taw,  and  succeeded.  But  here  their  misfortune 
is,  that  there  is  no  such  provision.  The  utmost  which  can  be  contended 
for  is,  that  the  slaves  have  been  emancipated  contrary  to  law.  For  Pringle 
and  Chartrand  have  the  actual  possession,  and  may,  I  suppose,  have  suf- 
fered the  slaves  to  work  out  their  own  maintenance,  paying  an  annual 
hire  of  one  dollar. 

Admit  that  to  be  emancii)ation,  what  is  the  consequence  ?  Not  that 
the  slaves  go  back  to  the  donor,  Init  that  they  are  liable  to  capture  ;  and 
equity  has  no  right  to  say  any  thing  else,  for  such  is  the  lex  scrlpta. 
But  the  question  whether  the  trust  is  lawful,  is  worth  e.xamination.  I 
confess  I  have  never  been  able  so  to  regard  it.  The  object  of  the  Act  of 
1820,  was  not  to  deprive  a  man  of  the  right  to  do  with  his  own  as  he 
pleases,  but  to  prevent  him  from  conferring  freedom  "  within  the  State" 
upon  a  class  of  people,  as  to  whom  her  policy  demands  that  they  should 
be  slaves  within  her  limits.  If  the  deed,  construed  with  its  trusts,  still 
makes  the  slaves  of  the  donor,  the  slaves  of  the  donees,  the  fact  that  he 
has  desired  that  they  should  give  to  them  the  fruits  of  their  labor,  cannot 
be  unlawful.  They  still  are  slaves  chattels  *personal,  they  still  r:j:  <-a 
are  under  the  dominion  of  masters,  and  must  so  remain.  For  if  ^ 
Pringle  and  Chartrand  ever  relax  their  hold  upon  them,  and  sufier  them 
to  go  at  large  and  act  for  themselves  icithout  their  restraint,  actual  or 
constructive,  they  would  be  liable  to  seizure,  and  would  become  the 
slaves  of  the  captors.  Kindness  to  slaves,  according  to  my  judgment,  is 
the  true  policy  of  slave  owners,  and  its  spirit  should  go  (as  it  generally 
has)  into  the  making  of  the  law,  and  ought  to  be  a  ruling  princi])Ie  of  its 
construction.  Nothing  will  more  assuredly  defeat  our  institution  of 
slavery,  than  harsh  legislation  rigorously  enforced.  On  the  other 
hand,  as  it  hitherto  has  been,  with  all  the  protections  of  law  and  money 
around  it,  it  has  nothing  to  fear  fvom  fanaticism  abroad  or  examination 
at  home.  If  it  was  so  that  a  man  dared  not  make  provision  to  make 
more  comfortable  faithful  slaves,  hard  indeed  would  be  the  condition  of 
slavery.  For  then  no  motive  could  be  held  out  for  good  conduct ;  and 
the  good  and  the  bad  would  stand  alike.  Such  has  never  been  the  rule 
applied  to  our  slaves,  and  such  I  hope  it  never  will  be.  I  am  satisfied 
that  there  is  nothing  unlawful  in  the  trust  of  the  first  deed,  and  if  it  be 
necessary  to  place  the  case  on  that  ground,  the  Court  are  prepared  to  so 
rule.  On  all  the  other  grounds,  however,  previously  considered,  we  are 
satisfied  that  the  deed  is  good  and  must  have  effect.  The  second  deed 
is  also,  I  think,  good  and  valid.  Tiie  only  thing  which  could  effect  it 
would  be  the  unlawfulness  of  the  trust,  if  it  be  unlawful.  It  is  a  good 
common  law  conveyance  to  Pringle  and  Chartrand  of  two  slaves,  for  the 
use  of  other  slaves  conveyed  to  them.  In  such  a  case  Pringle  and 
Chartrand  having  the  possession,  have  the  right  to  say,  it  is  a  naked 
conveyance  to  them  ;  and  that  the  trust  is  mere  matter  of  advice  and 
recommendation,  which  they  may  or  may  not  regard.  But  suppose  the 
trust  is  to  be  noticed,  then  it  would  be  a  gift  to  the  slaves  of  Pringle  and 
Chartrand,  which  is,  I  think,  a  gift  to  the  owners.  According  to  Fable 
vs.  Broicn,  2  Hill  C.  R.,  318,  such  a  gift,  even  by  way  of  devise,  would 
prevail  in  equity.  I  do  not  agree  to  tlie  reasoning  of  that  case,  however 
ingenious  and  able  it  may  be.     I  concurred  in  the  result  merely.     For  I 


646  CHARLESTON,  FEBRUARY,  1842.       VOL.  IL  [*470 

hold  that  the  personal  property  of  the  slave  is  the  property  of  the  master, 
and  that  anything  personal  given  to  the  slave  is  given  to  the  master ;  and 
this  I  understand  to  be  the  opinion  of  the  Court  of  Errors.  Our  legisla- 
^  _,-,  tive  Act  of  1740,  §  34,  P.  L.,  121,  shows  that  *unless  prohibited 
-'  by  Act,  slaves  might,  by  consent  of  the  master,  acquire  and  hold 
personal  property,  and  that  even  in  prohibited  cases,  a  particular  course 
altogether  different  from  escheat  must  be  pursued  to  subject  the  property 
of  the  slave  to  forfeiture.  Our  decided  cases,  with  the  exception  of 
Fable  vs.  Broicn,{a)  and  the  guardian  of  Salhj  vs.  Beathj,  1  Bay, 
260,  acknowledge  the  right  of  the  owner  of  a  slave  to  all  his  or  her 
acquisitions.  The  case  of  the  guardian  of  Sally  vs.  Beafty,  denies  the 
right  of  the  owner,  under  special  circumstances,  to  the  acquisitions  of  a 
slave,  and  sustained  the  freedom  of  a  negro,  purchased  by  a  slave  out  of 
her  own  earnings.  That  case  goes  further  than  I  desire  to  go  ;  but  it  is 
ample  authority  to  prove,  that  by  the  law  of  this  State  a  slave  might 
acquire  j:)ersonal  property,  and  that  such  a  thing  as  an  escheat  was  not 
an  incident  of  it.  The  case  of  Hobson  vs.  Percy,  1  Hill,  277,  holds  that 
a  master  in  possession  of  the  personal  property  of  his  slave,  may  maintain 
trespass  for  an  immediate  and  forcible  injury  done  to  it.  That  case  was 
for  an  injury  done  to  an  article  of  property,  which  by  the  Act  of  1740,  § 
34,  slaves  are  prohibited  from  owning,  and  yet  being  in  the  possession  of 
the  master,  it  was  regarded  as  his  property.  Looking  back  over  our 
legislation,  and  our  decided  cases,  and  the  usages  of  our  people,  I  think 
that  we  are  well  sustained  in  saying  that  a  slave  may  acquire  and  hold 
in  possession  personal  property,  {not  prohibited  to  him  or  her  by  Act 
of  the  Legislature)  with  the  consent  of  the  master  or  mistress,  and  that 
such  property  is  in  laiv  to  be  regarded  as  the  property  of  the  owner  of 
the  slave.  Both  deeds  are  therefore  good,  and  must  be  sustained,  unless 
by  the  Act  of  1841,  (11  Stat,  at  Large,  154,)  entitled  "an  Act  to  pre- 
vent the  emancipation  of  slaves,  and  for  other  purposes,"  they  are  rendered 
inoperative.  That  Act  has  been  supposed  to  be  retrospective,  but  on 
carefully  considering  it,  I  think  all  its  provisions  are  future,  and  I  rejoice 
that  they  are  so.  For  I  should  have  thought  it  a  stain  upon  the  purity 
of  our  legislation,  if  it  had  been  true  that  the  Act  had  been  passed  to 
defeat  vested  rights. 

That  such  an  Act  would  have  been  contrary  to  our  own  constitution, 
which  has  declared  that  "  no  free  man  shall  be  disseized  of  his  freehold, 
liberties,  or  privileges,  or  outlawed,  or  exiled,  or  in  any  manner  deprived 
of  his  life,  liberty  or  property,  but  by  the  judgment  of  his  peers,  or  the 
*472T  ^^^"^  ^^  ^''^  land,"  seems  *to  me  to  be  too  plain  to  admit  of  argu- 
-•  ment.  Tlio  motion  to  reverse  the  circuit  decree  is  granted,  and 
the  complainant's  bill  is  dismissed. 

Johnson,  Harper,  Richardson,  Evans,  Earle,  and  Butler,  CC. 
and  JJ.,  concurred.     Wardlaw,  J.,  absent  at  conference. 
Johnston  and  Dunkin,  CC,  did  not  sign  the  opinion. 

(")  Infra,  4^7  ;  8  Rich.  32 ;  2  Rich.  425. 
Besifles  tho  cases  cit(;d  in  this  case,  see   Skrine  vs.  Walker,  3  Rich.  Eq.  267 ; 
also,    Vose  vs.  Unnnahnn,  10  Rich.  4G5  ;  Esche.utor  vs.  Dangcrftcid,  8  Rich.  Eq.  95; 
iJoufjfifirti/  vs.  Doiiglurtf/,  2  Htrob.  Eq.  6:5 ;    Guilmetto  vs.  Harper,  4  Rich.  190  ;   Vin- 
yard  vs.  Passaluigue,  2  Stiob.  5:JG  ;  uext  case  ;  Act  of  1841,  11  Stat.  154.     Ati. 


B  THE  COURT  or  ERRORS. 


Mary  Bowers  et  al.  vs.  Thomas  B.  Newmax. 

1.  A  free  person  of  color,  by  the  laws  of  this  State,  may  take  and  hold,  convey 
by  deed,  dispose  of  by  will,  or  transmit  to  his  heirs  at  law,  both  real  and  per- 
sonal estate. 

2.  A  slave  may  acquire  property,  but  as  he  cannot  hold,  it  inures  to  the  master. 

3.  Freedom,  when  bestowed  upon  a  slave  by  will,  is  usually  spoken  of  as  a  legacy, 
which  requires  the  assent  of  the  executor,  as  other  bequests.  But  should  the 
executor  withhold  his  assent  to  the  legacy  of  freedom  to  the  slave,  the  heir-at- 
law  cannot  retain  him  in  slavery;  for,  upon  the  death  of  the  testator,  his  right 
of  freedom  vests,  subject  only  to  be  held  by  the  executor  liable  for  the  demands 
of  creditors. 

4.  After  the  lapse  of  twenty-eight  years,  the  assent  of  an  executor  to  a  legacy  of 
freedom  will  be  presumed,  and  the  claim  of  creditors  satisfied  or  barred,  and 
the  possession  of  the  slave  (so  bequeathed  her  freedom)  of  a  tract  of  land  also 
devised  to  her  by  the  testator,  and  which  she  held  undisturbed  and  in  quietness, 
is  sufficient  to  give  her  a  title  to  said  land,  as  a  free  person  of  color,  against  the 
heir-at-law,  and  all  the  world. 

5.  By  the  Act  of  1824,  it  is  enacted,  that  every  "gift  of  land  by  devise  shall  be 
considered  as  a  gift  in  fee  simple,  unless  such  construction  be  inconsistent  with 
the  will  of  the  testator,  expressed  or  implied."  The  word  "^ereo/?er,"  in  the 
first  part  of  the  section,  is  held  to  relate  to  the  time  of  adjudication,  in  con- 
nection with  the  word  ^^ considered,^'  and  not  to  the  date  of  the  devise. 

6.  Where  the  testator  by  his  will  devises  in  consecutive  clauses,  first  to  Judith, 
then  to  Barbara,  each  one-half  of  certain  lands  containing acres,  to  them- 
selves for  life,  with  the  power  of  disposing,  and  in  default  with  remainder  over; 
and  afterwards,  by  a  codicil  to  said  will  uses  the  following  language:  "  1  do 
hereby  revoke  that  part  of  my  will  wherein  I  bec[ueathed  to  the  within-named 
Judith  and  Barbara  the  three  tracts  of  land  between  them,"  and  afterwards 
continues:  "  I  bequeath  to  the  said  Judith  the  place  whereon  she  now  lives, 
adjoining  Jolui  Newman's  land,  containing  tliree  hundred  acres,  under  the  con- 
tiiif/encies,  limitations,  and  restrictions  mentioned  in  mij  said  icill,"  and  "I  revoke 
that  part  of  my  said  "will  wherein  I  leave  to  the  said  Barbara  that  land  below 
Silver  Bluflf,  being  a  part  of  three  tracts  of  land,  and  in  lieu  thereof  I  leave  her 
that  whole  tract  of  land  adjoining  the  point,  containing  upwards  of  three  hun- 
dred acres,  the  lowermost  part  of  said  land ;  the  land  between  the  two  parcels 
I  left  to  the  said  Judith  and  Barbara  I  leave  to  the  said  Thomas,  son  of  the  said 
Rachel  Dupre" — 

*7.   It  was  held  that  the  devise  to   the   said  Barbara  in  the  codicil  was   r *_(--. 
not  merely  a  substitution  of  one  tract  of  land  for  another,  to  be  held  by  '■ 
her  for  life  only,  and  subject  to  the  limitations  of  the  original  devise  to  her  by 
the  will  of  the  testator,  but  was  a  devise  in  fee. 

Before  Earle,  J.,  at  Barnwell,  Fall  Term,  1838. 

The  action  upon  which  this  special  verdict  was  predicated,  was  one  to 
try  titles  to  a  tract  of  land.  In  order  properly  to  understand  tiie  case, 
au  abstract  of  the  will  of  the  testator  Galphin  is  also  subjoined. 

Special  Yerdict. 
We  find  that  George  Galphin,  by  his  last  will  and  testament,  dated  the 


64:8  CHARLESTON,  FEBRUARY,  1842.       VOL.  IL  [*473 

Gth  (lav  of  April,  ITTG,  gave  her  freedom  to  a  colored  woman  named 
Barbara,  then  his  slave  ;  and  by  a  subseqnent  clause,  devised  to  her  cer- 
tain lands  (not  then  in  dispute)  for  the  terra  of  her  natural  life,  with 
remainder  over  to  such  issue  as  she  might  leave  living  at  her  death,  to  be 
divided  between  and  among  them  in  such  proportions  and  under  such 
limitations,  restrictions  and  conditions,  as  she  the  said  Barbara  by  will  or 
other  paper  duly  executed,  should  direct  or  appoint;  and  in  default  of 
such  appointment,  then  to  be  equally  divided. 

By  a  codicil  duly  executed  14th  February,  1718,  the  testator  revoked 
that  part  of  the  will  containing  the  foregoing  devise  to  Barbara,  and  in 
lieu  thereof  devised  to  her  without  limitation  during  life,  and  also  without 
words  of  perpetuity  or  inheritance,  the  lands  now  in  dispute,  and  also 
without  the  remainder  over  to  her  issue,  and  without  the  power  of  ap- 
pointment to  the  said  Barbara  as  to  the  mode  of  distribution  provided 
for  in  the  orignal  devise. 

"We  find  that  the  said  George  Galphin  departed  this  life  in  1782,  leav- 
ing the  said  will  and  codicil  unrevoked.  That  the  said  Barbara,  who 
intermarried  with  one  William  Holmes,  entered  upon  the  lands  devised 
in  the  codicil,  and  continued  in  possession  thereof  until  they  were  sold 
as  her  property  under  execution,  and  she  was  evicted  by  action  at  the 
suit  of  the  purchaser  in  1827. 

We  find  that  Barbara  Holmes  departed  this  life  in  18.30,  leaving  the 
plaintiffs,  the  issue  of  her  marriage  with  William  Holmes,  who  was 
also  then  dead ;  and  that  the  said  Barbara  died  intestate,  and  without 
having  executed  otherwise  the  power  of  appointment  in  relation  to  the 
said  land. 

*174.1  *^^e  further  find,  that  the  defendant  entered  and  occupied  the 
-'  land  since  1830,  as  the  tenant  of  Darling  Peoples,  the  purchaser 
at  sheriff's  sale,  who  now  claims.  If  the  Court  shall  be  of  opinion  that 
the  plaintiffs  are  entitled  to  recover,  then  we  find  for  the  plaintiffs,  the 
lands  described  in  Allen's  plat  of  survey,  and  marked  with  seventy 

dollars  damage.  If  the  Court  should  be  of  opinion  that  the  plaintiffs 
are  not  entitled  to  recovery,  then  we  find  for  the  defendants.  And  we 
refer  the  Court  to  the  entire  will  of  George  Galphin,  which  was  in  evi- 
dence. 

(Signed,)     JOHN  F.  PEYTON,  Foreman. 

Abstract  of  George  GALrniN's  Will. 

Tho  to«tator  first  gives  freedom,  from  the  time  of  his  death,  to  all  legatees  or 
devisees  not  then  free,  and  especially  to  Barbara,  daughter  of  Rose.  Then  having 
given  freedom  to  two  mulatto  girls,  and  one  Indian  (daughter  of  Natechuchy),  &c., 
&c.,  he  leaves  in  four  lengthy  clauses,  several  tracts  of  land,  and  also  from  twelve 
to  twenty  slaves,  with  their  children  and  increase,  to  Thomas  and  JIartha  Galphin, 
children  of  Rachel  Dupee,  and  to  George  and  John,  sons  of  JIaturney  ;  the  lands 
and  slnvr's  heing  given  to  each  of  them  under  the  same  restrictions  and  limitations 
as  in  the  devise  to  Barl)ara.  The  testator  tlien  gives  to  Judith,  daughter  of 
Matiirney,  one  half  of  tliree  tracts  of  land,  two  hundred  acres  of  the  cede^i  lands, 
witli  eigliteen  slaves,  their  children,  tScc,  under  limitations,  as  in  the  case  of 
Barbara.  He  next  gives  to  Barbara,  the  daughter  of  Rose,  for  and  during  her 
natural  life,  witliout  imi)eachment  of  waste,  tlie  use  of  the  lower  half  of  three 
tracts  of  land,  wliich  said  tracts  run  from  Newman's  line  down  to  the  point,  con- 
taining in  tlie  whole  about  thirteon  or  fourteen  hundred  acres,  with  all  the 
improvements  tliereon,  called  Silver  Bluflf.     lie  also  leaves  her  seventeen  slaves, 


*4T-4]  BOWERS   ET    AL.    VS.    NEWMAN  649 

.and  tlieir  cliildren,  and  future  increase,  &c.  And  npon  the  death  of  the  said 
Barbara,  lie  gives  tlie  said  lands  and  slaves  unto  the  oliild  or  children  of  the  said 
Barbara  that  shall  be  then  living,  in  such  parts  and  proportions,  and  for  such 
estate  and  estates,  and  at  and  under  such  contingencies,  limitations  and  restrictions, 
as  the  said  Barbara  shall  by  her  last  will  and  testament  in  writing,  or  other  writing 
by  her  duly  executed,  direct,  limit  and  appoint.  And  for  want  of  such  directions, 
limitation  and  appointment,  he  gives  and  bequeaths  the  said  *  lower  half  of  r#j^wr 
the  said  throe  tracts  of  land,  with  the  slaves,  &c.,  to  and  amongst  all  and  '■ 
every  the  children  of  the  said  Barbara,  that  shall  live  to  come  of  age  or  have  issue, 
to  be  equally  divided  amongst  them  and  their  respective  heirs  and  assigns  forever, 
as  tenants  in  common,  and  not  as  joint  tenants.  And  if  but  one  child  of  the  said 
Barbara  should  live  to  come  of  age,  or  have  issue,  to  that  child  alone,  and  to  his 
or  her  heirs  and  assigns  forever.  Then  after  disposing  of  two  slaves  and  several 
miinor  articles,  the  testator  proceeds  thus  :  ' '  Also,  it  is  my  desire  that  in  case  any 
of  the  six  devisees  and  legatees  hereinbefore  mentioned,  namely,  George,  Thomas, 
John,  Judith,  Martha  and  Barbara,  happen  to  die  without  having  issue,  or  their 
issue  die:  That  then  and  whenever  a  contingency  of  that  kind  happens  to  any  of 
the  said  devisees,  or  any  of  their  issue,  that  the  estate,  slaves,  and  issue  of  slaves 
herein  intended  for  such  devisee  or  devisees,  and  issue,  shall  be  shared  alike 
equally  by  my  executors,  or  the  survivors  of  them,  amongst  the  survivors  of  the 
said  devisees  and  legatees  :  and  the  land  to  be  shared  between  the  said  George, 
Thomas  and  John :  and  the  slaves  and  their  issue  to  be  shared  equally  between 
the  said  six  devisees  and  their  heirs."  Having  made  the  said  Thomas  and  Martha 
residuary  devisees  and  legatees,  Galphin  next  provides,  that  in  case  the  said  six 
devisees  and  legatees  should  all  die  intestate,  and  without  issue,  all  the  estate 
given  to  them  should  go  to  his  sisters  and  their  heirs,  share  and  share  alike. 
The  remaining  portions  of  the  will  are  entirely  irrevalent  to  the  matter  in  dispute. 
In  the  first  codicil,  the  testator  revokes  that  part  of  his  will  wherein  he  bequeaths 
to  Judith  and  Barbara  the  three  tracts  of  land  between  them,  and  bequeaths  to 
the  said  Judith  the  place  whereon  she  now  lives,  adjoining  John  Newman's  land, 
containing  three  hundred  acres,  under  the  contingencies,  limitations  and  restric- 
tions mentioned  in  the  said  will.  Then  having  revoked  several  other  parts  of  his 
will,  he  goes  on  to  say :  "  I  revoke  that  part  of  my  said  will  wherein  I  leave  to 
the  said  Barbara  that  land  below  Silver  Bluif,  being  a  part  of  three  tracts  of  land. 
In  lieu  thereof,  I  leave  to  her  that  whole  tract  of  land  adjoining  the  point,  con- 
taining U2)wards  of  three  hundred  acres,  the  lowermost  part  of  said  land.  The 
land  between  the  two  parcels  I  leave  to  the  said  Thomas,  son  of  the  said  Rachel 
Dupee."  In  the  second  codicil,  he  revokes  a  legacy  of  one  negro  to  Barbara;  and 
in  the  third  codicil  he  gives  to  the  said  Barbara  five  slaves  *and  their  r^An(> 
children,  and  future  issue,  unto  the  said  Barbara,  her  heirs  and  assigns  '■ 
forever. 

The  will  is  dated  6th  April,  1776.  The  first  codicil,  February,  1778.  The 
second  codicil,  March,  1780  ;  and  the  third,  September,  1780.  The  will  and 
codicil  were  sworn  to  before  John  Ewing  Calhoun,  of  Ninety-six  District,  in 
AprU,  1782. 

Report  of  the  Presiding  Judge. 

This  was  a  motion  for  leave  to  enter  Judgment.  Several  questions 
arose. 

1st.  Whether  by  the  same  testament  which  manumitted  her,  the 
woman  Barbara  could  take  an  estate  in  the  land  devised  in  either  of  the 
clauses. 

2d.  If  she  could,  whether  she  could  legally  contract  marriage  so  as 
to  enable  her  children  to  take  as  issue  under  the  first  clause  recited,  the 
remainder  limited  to  them. 

3d.  Whether  under  the  codicil  revoking  that  part  of  the  will  contain- 
ing the  devise  of  lauds  limited  over  to  the  plaintiffs,  Barbara,  if  she  could 


*477] 


G50  CHARLESTON,  FEBRUARY,  1812.      VOL.  II.  [*476 

take  at  all,  did  not  take  an  estate  in  fee,  wliicli  passed  to  the  purchaser 
at  f;lieriff's  sale. 

Ou  the  first  question,  it  seemed  to  be  conceded,  that  Barbara,  at  the 
death  of  George  Galphin,  might  be  legally  set  free,  there  being  no  re- 
striction on  the  power  of  manumission.  But  the  doubt  was  whether,  as 
her  freedom  was  a  legacy  which  could  not  take  effect  if  there  were  debts, 
and  might  require  the  assent  of  the  executor,  there  was  at  the  instant  of 
the  death  any  one  in  being  capable  of  taking  the  particular  estate  so 
as  to  carry  the  remainder.  But  it  seemed  not  to  have  struck  the  counsel 
that  if  incapable  of  taking  under  the  will,  the  particular  estate,  she  could 
not  under  the  codicil  take  the  estate  in  fee  which  he  now  claims  for  her. 
As  the  opinion  of  the  Court  was  formed  on  another  point,  it  seems  to  be 
unnecessary  to  decide  that  question  ;  nor,  according  to  the  view  I  have 
taken  of  the  will,  is  it  necessary  to  decide  the  question  on  the  validity  of 
the  marriage.  I  hope  it  will  never  become  necessary  to  decide  that 
question  against  the  legitimacy  of  the  plaintiffs. 

On  the  third  question,  I  was  of  opinion  that  the  codicil  is  a  clear  une- 
quivocal revocation  of  the  entire  clause  containing  the  devise  of  the 
particular  estate  to  Barbara  for  life,  with  remainder  to  her  issue.  That 
the  limitations  and  restrictions  in  that  clause  *\vere  not  intended 
to  be  annexed  to  the  devise  in  the  codicil,  and  that  she  took  the 
estate  there  free  from  such  limitations  and  restrictions  ;  and  although 
there  are  no  words  of  perpetuity  or  inheritance,  she  took  under  the 
codicil  an  estate  in  fee,  which  was  liable  for  her  debts,  and  became  vested 
in  the  purchaser  at  sheriff's  sale.  It  was  therefore  ordered  that  the 
Postea  be  delivered  to  the  defendant,  and  that  he  have  leave  to  enter 
judgment. 

The  plaintiffs  appeal,  and  move  to  reverse  the  decision,  and  for  leave  to  enter 
judgment  for  themselves. 

Appeal  heard  at  Charleston,  in  the  Court  of  Errors,  February,  1841. 

Bellinger,  for  the  Appellants. 

The  grounds  taken  by  the  defendant's  counsel  in  the  Court  below,  and  the 
report  of  the  presiding  judge,  make  it  necessary  for  the  appellants  to  maintain 
the  following  positions  : — 

L  That  in  this  State,  free  persons  of  color  can  take  and  hold  an  estate  in  real 
propi'.rti/. 

II.  That  Barbara  Holmes  (the  colored  woman  from  whom  plaintiffs  are  descended), 
could  contract  marriage  with  a  white  man,  so  as  to  enable  the  issue  to  take  under 
Galphin's  will,  the  estate  in  remainder  limited  to  them. 

HI.  Tliat  Barbara  Holmes  could  be  a  devisee  under  the  sa?ne  will  which  gave 
her  freedom,  and  thus  could  take  the  particular  estate  so  as  to  support  the 
remainder. 

IV.  That  if  Barbara  Holmes  could  not  be  a  devisee  under  the  same  will  which 
gave  her  freedom,  this  does  not  defeat  the  estate  in  remainder  limited  to  her 
iBSue,  the  jdaintilfs. 

V.  The  lands  in  dispute  were  not  bequeathed  to  Barbara  Holmes  in  fee  simple; 
but  were  bequeathed  to  Barl)ara  Holmes  for  life,  with  remainder  to  her  issue,  the 
plaintiffs.      In  sujt])ort  of  these  positions,  he  argued  as  follows: 

1.  That  in  tliis  fcitate,  free  persons  of  color  can  take  and  hold  an  estate  in  real 
property. 

1.  Be(uanae  it  has  been  decided  again  and  again  on  circuit,  that  such  persons 
can  take  and  hold  an  estate  in  personal  property. 


^477] 


BOWERS    ET   AL.    VS.    NEWMAN.  651 


And  in  one  case  a  bill  in  chancery  for  the  payment  of  an  annuity  was  supported, 
the  objection  being  made  that  the  comjjlainaiit  was  a  free  person  of  color. 

2.  Because,  in  Recti  vs.  J'aris/i,  1  M'Cord  Ch.  58,  a  free  mulatto  was  admitted 
without  objections  as  a  defendant  in  chancery,  and  claiming  certain  negroes. 

■*3.  Because,  in  SlugUion  vs.  Bremar,  fcjtate  Kep.  201,  no  olijection  of  this    r^(.j.HQ 
kind  was  taken  against  a  deed  of  a  house  and  lot  to  a  free  woman  of  color,    '-      ' 
though  such  an  objection  (if  sustainable)  would  have  Ijeen  fatal. 

4.  Because,  in  the  State  vs.  Mary  Ilays,  1  Bail.,  275,  the  Court  say:  "the  Acts 
of  the  Legislature,  the  decisions  of  our  Courts,  and  the  constitution  of  the  State, 
concur  in  denying  to  the  mulatto  any  civil  rights  beyond  those  incident  to  the 
holding  and  transmission  of  property" — which,  in  connexion  with  the  context, 
can  mean  nothing  less  than  this:  that  no  Act  of  the  Legislature,  no  decision  of  our 
Courts,  and  nn  part  of  our  constitution,  prohibited  the  mulatto  from  holding  and 
transmitting  property,  nor  from  enjoying  the  rights  incident  thereto. 

5.  Because,  it  being  admitti'd  that  such  persons  can  take  and  hold  personal 
property,  it  is  incumbent  on  the  defendant's  counsel  to  show  that  they  are 
prohibited  fi-om  taking  and  holding  real  estate. 

().  Because,  so  far  as  arguments  ab  inc.onvenienti  apply,  it  is  less  objectionable  for 
such  persons  to  take  and  hold  real  estate,  than  to  be  allowed  to  possess  and 
accumulate  personal  property,  and  yet  be  debarred  from  the  chief  means  of 
procuring  settled  and  i^ennanent  residences. 

7.  Because  the  state  of  freedom,  ex  vi  termini,  puts  such  persons  in  possession 
of  all  rights  and  privileges,  from  which  they  are  expi-essly  excluded.  The 
defendant's  counsel  must  disable  the  plaintiffs  by  the  strength  of  his  objection. 

8.  Because  free  persons  of  color  certainly  have  rights — they  are  human  beings 
under  our  government ;  yet  1st.  they  are  not  free  white  citizens  ;  2d.  they  are 
not  Indians  ;  3d.  they  are  not  slaves  ;  and  there  is  no  other  status  or  condition  to 
which  they  can  be  assigned,  unless  they  be  viewed  as  a  class  entitled  to  all  the 
rights  and  privileges  of  free  white  citizens,  saving  those  (many  indeed)  from 
which  they  are  excluded  by  the  provisions  of  the  Constitution,  by  Legislative 
enactments  or  adjudicated  cases. 

9.  Because  the  Constitution  and  Legislative  enactments  have  imposed  various 
disabilities  on  these  persons,  yet  in  no  part  of  the  Constitiition  and  by  no  Act  of 
the  Legislature  are  they  prohibited  from  taking  and  holding  real  property. 

10.  Because  we  cannot  sujjpose  all  those  disabilities  and  prohibitions  to  have 
been  needless  and  supererogatory  ;  they  must  -have  been  found  necessary  ;  r*_i^Q 
therefore  we  cannot  go  beyond  those  disabilities  and  prohibitions.  '- 

11.  Because,  in  Georgia  (a  State  having  similar  institutions),  express  enact- 
ments have  been  found  necessary. 

An  Act  19  Dec,  1818,  prohibiting  free  persons  of  color  from  pui'chasing  or 
acquiring  real  estate  or  slaves.     Lamar's  Digest,  p.  815. 

This  was  afterwards  repealed,  and  the  prohibition  (with  some  exceptions) 
removed,  as  to  real  estate. — A.  A.  22d  Dec,  1820.     Lamar's  Digest,  p.  820. 

12.  Because  the  whole  course  of  legislation  on  this  subject  in  South  Carolina, 
has  been  in  the  negative  and  not  in  the  affirmative — enactments  of  proliibition,  and 
not  of  grants.  Compare  the  course  of  legislation  as  to  slaves,  and  as  to  free 
persons  of  color,  especially  in  relation  to  criminal  matters. 

13.  Because  these  persons  from  the  earliest  times  have  been  in  fact  allowed  to 
take  and  hold  property  (both  real  and  personal)  within  the  knowledge,  without 
the  prohibition,  and  therefore  with  the  inii)lied  sanction  of  the  Legislature. 

14.  Because  the  Legislature  have  clearly  and  unequivocally  expressed  their 
sanction.  Vide  Acts  of  Assembly,  each  year  imposing  taxes  on  such  persons, 
thereby  admitting  their  right  to  hold  property  generally. 

So  various  Acts  of  Assembly,  as  to  punishing  such  persons  by  fines. — A.  A.  1740, 
P.  L.  170.  A.  A.  1820,  p.  23.— Is22,  p.  10  and  12.— 1823,  p.  63.— 1833,  p.  40.— 
1834,  p.  13  and  15. 

Above  all,  A.  A.  1822,  p.  10,  I  5,  imposing  a  tax  on  all  houses  within  the  limits 
so  guarded  (by  the  Municipal  Guard  of  Charleston),  inhabited  by  negroes  or 
persons  of  color,  as  tenants  or  owners. 

15.  Because  the  question  has  been  expressly  decided  by  the  Appeal  Court  in  the 
affirmative  :    The  Heal  Estate   of  Mrs.  Hardcastle  ads.   the  Escheator  of  Pineville 


652  CHARLESTON,  FEBRUARY,  1842.      VOL.  IL  [*479 

Academy.  (Original  manuscript.)  Tried  before  Judge  James,  May,  1825. (a)— 
Elizabeth  Hardcastle,  a  free  icoman  of  color,  died  possessed  of  several  tracts  of 
land,  -n-hich  the  Escheator  of  Pineville  Academy  claimed  as  escheator ;  she  having 
left  no  person  that  could  claim  the  same  by  descent  or  purchase.  The  claim  of 
the  escheator  was  resisted  by  persons  who  represented  themselves  as  next  of  kin. 
On  appeal,  determined,  that  by  the  common  law  of  the  State,  the  free  descend- 
^  ,„„,  ants  of  a  negro  are  entitled  to  hold  lands,  and  *that  where  the  evidence  of 
-'  relationship  between  the  individuals  claiming,  and  the  deceased,  is  satis- 
factory, they  may  take  by  descent. 

II.  That  Barbara  Holmes  (the  colored  woman  from  whom  plaintiffs  are  descended) 
could  contract  marriage  with  a  white  man,  so  as  to  enable  the  issue  to  take  under 
Galphin's  will,  the  estate  in  remainder  limited  to  them. 

1.  Because  if  it  is  lawful  for  free  persons  of  color  to  take  and  bold  property  (as 
I  have  shown),  there  is  removed  one  of  the  chief  objections  to  such  marriages. 

2.  Because,  under  the  civil  law,  though  senators,  their  sons  and  grandsons 
could  not  marry  a  manumitted  slave,  this  prohibition  was  founded  on  positive 
law,  and  did  not  extend  to  private  men.  Vid.  Dio.  book  16.  Adam's  Roman 
Antiq.  442. 

3.  Because,  under  the  English  Common  Law,  a  freeman  might  marry  a  neife, 
or  a  villein  a  freewoman — the  issue  (contrary  to  the  maxim  of  the  civil  law) 
would  follow  the  condition  of  the  father,  but  the  marriage  was  lawful.  2  Blac. 
Com.  94.  Litt.  Sec.  187.  "But  the  spurious  issue  of  a  neife,  though  by  a  free 
father,  would  be  a  villein,  quia  sequitur  conditionem  matris,  quasi  i-idgo  conccptus," 
Vid.  Bracton,  book  1,  c.  6,  as  cited  in  Hallam,  1st  vol.  p.  232.     (Phia.  ed.) 

Contra  Blackstone  and  Litt.  tit  supra,  as  to  the  status  of  such  spurious  issue ; 
but  this  evidently  shows  that  marriage  might  exist  between  such  parents. 

4.  Because  the  chief  objection  against  such  marriages,  the  want  of  civil  status 
in  the  person  of  color,  has  never  been  recognized  under  our  laws,  is  not  consonant 
with  the  spirit  of  our  institutions,  and  certainly  has  no  application  in  cases  where 
the  want  of  status  arises  from  positive  prohibitions  of  a  certain  and  definite 
character  and  extent.     Law  Journal,  p.  92. 

5.  Because,  in  Pennsylvania,  Massachusetts,  Virginia,  North  Carolina  and 
Illinois,  express  statutory  provisions  have  been  found  necessary  to  make  such 
marriages  unlawful. 

6.  Because  the  marriage  of  a  white  man  with  a.  free  ivoman  of  color,  is  not  more 
contrary  to  law,  than  the  marriage  of  an  Indian  with  a  free  icoman  of  color,  or  a 
white  man  with  an  Indian,  or  citizen  with  alien.     2  Kent,  49.    (n.) 

7.  Because  no  such  objection  is  recognized  at  common  law.  Vid.  1  Blac.  Com. 
433.     Kent's  Com.  part  iv.  Lee.  xxvi. 

*4811  ^"  because,  our  A.  A.  1712,  following  the  Stat.  32  11.  8,  c  38,  ^declares 
"all  persons  to  be  lawful  (that  be  not  prohibited  by  God's  law)  to  marry." 
Vid.  P.  L.  55. 

9.  Because,  if  (as  I  have  shown)  a  state  of  freedom  ex  ri  termini,  piits  free 
persons  of  color  in  possession  of  the  rights  of  free  white  citizens,  save  those  from 
wliich  they  are  expressly  excluded,  then  most  unquestionably  such  marriages  are 
lawful,  unless  the  objector  can  sliow  positive  prohibition,  which  cannot  be  done. 

Hence,  I  conclude,  although  such  marriages  arc  revolting,  and  justly  regarded  as 
offensive  to  public  decency,  they  are  not  contrary  to  exist intj  laws. 

III.  Tliat  liarbara  Holmes  could  be  a  devisee  under  the  same  will  which  gave 
her  freedom,  and  thus  could  take  particular  estate  so  as  to  support  the  remainder. 

1.  It  cannot  be  contended,  that  the  mode  of  manumission  was  contrary  to  law. 
fJalphin's  will  took  effect  in  1782,  eighteen  years  previous  to  the  A.  A."  1800,  (2 
Faust,  355,  7),  prescribing  the  mode  of  manumission,  and  aftei'wards  superseded 
by  A.  A.  1820,  p.  22,  probibiting  emancipation. 

2.  Nor  can  it  be  contended,  that  there  were  debts  against  the  estate  of  Galphin, 
which  could  bar  the  manumission. 

3.  Nor  can  it  hn  contended,  tlie  executor  did  not  assent  to  the  legacy  of  freedom. 
Such  assent  will  be  presumed.     Toller's  Ex'ors.  p.  .308. 

In  Lenoir  VB.  Sylvester,  1  Bailey's  Rep.  G39,  the  Court  decided  that  under  the  A. 

(«)  Harp.  L.,  Riley's  Ed.,  Appendix,  495. 


^481] 


BOWERS    ET   AL.    VS.    NEWMAN.  653 


A.  1800  (which  required  various  formal  proceedings),  the  mere  assent  of  the 
executor  to  a  life  estate  in  slaves,  was  not  an  assent  to  freedom,  bequeathed  to 
those  shives  on  the  death  of  the  tenant  for  life.  But  in  this  case,  Barbara  Holmes 
was  in  possession  of  the  lands  devised  (see  the  special  verdict),  and  sm-vAy  prerious 
to  1800,  if  an  executor  assented  that  one  who  had  been  a  slave  should  hold 
property  under  a  will,  this  was  an  assent  to  freedom  bequeathed  by  that  will,  to 
take  effect  eo  instanti  the  testator  died.  The  substantial  objection  is,  that  when 
the  will  took  effect,  Barbara  Holmes  was  not  yet  frcd — therefore,  being  a  slave, 
was  incapable  of  taking  the  life  estate ;  in  otlier  words,  it  is  said  the  bequest  of 
freedom  took  effect,  but  not  in  time.     This  objection  is  unsustainable. 

1.  Because,  if  no  debts  existed  at  the  time  of  Galphin's  death  to  bar  the 
bequest  of  freedom,  then  quoad  debts,  the  bequest  of  freedom  took  effect  eo  instanti 
the  testator  died. 

2.  Because,  if  the  executor  did  assent,  even  if  there  were  debts,  *they  r^Aon 
could  not,  after  such  assent,  affect  the  bequest  of  freedom ;    such  assent  '- 
being  irrevocable  and  being  proof  of  assets.     Toller's  Ex'ors.  p.  307,  310.     State 
Rep.  p.  21. 

3.  Because  it  is  questionable  whether  the  doctrine  as  to  the  executor's  assent, 
applies  with  equal  strictness  to  a  bequest  of  freedom,  as  to  a  pecuniary  legacy.  A 
bequest  of  freedom  ipso  facto  makes  the  legatee  free  eo  instanti  the  wiU  takes 
effect,  unless  the  executor  subsequently  takes  measures  of  prevention. 

4.  Because,  even  if  the  assent  of  the  executor  be  essential,  the  bequest  of 
freedom  to  Barbara  Holmes,  ipso  facto,  gave  her  an  inchoate  right,  which  though 
requiring  the  executor's  assent  to  complete  it,  would  yet  prevent  the  devise  to  her 
from  being  void.     Before  assent,  a  legatee  may  dispose  of  his  legacy.     Toller,  311. 

5.  Because,  assent  of  the  executor,  when  given,  would  have  relation  to  the  time 
of  the  testator's  death,  and  thus  would  have  made  Barbara  Holmes  capable  of 
being  a  devisee. 

Thus,  profits  accruing  between  the  testator's  death  and  the  assent,  go  to  the 
legatees.  Vid.  Toller's  Ex'ors,  p.  311.  "Such  assent,  shall  by  relation,  confirm 
an  intermediate  grant  by  the  legatee  of  his  legacy."     Ibid. 

6.  Because  the  objection  itself  furnishes  an  answer. 

If  it  be  law  that  Barbara  Holmes  could  not  take  the  devise  until  assent  of 
executor,  Galphin  must  have  known  this,  and  in  fact,  an  inspection  of  the  will 
shows  that  Galphin  meant  "when  Barbara  Holmes  shall  be  made  free,  by  the 
OiSsent  of  my  executor  to  the  bequest  of  freedom,  then  let  her  take  the  devise, ' '  &c. 

See  the  doctrine  in  relation  to  devisees  in  ventre  sa  mere,  and  to  other  cases 
where  the  testator  shows  that  he  was  aware  that  the  devisee  could  not  take 
immediately.      Vide  Fcarne  Cont.  Rem.  428.     Bowel's  Devises,  p.  332. 

IV.  That  if  Barbara  Holmes  could  not  be  a  devisee  under  the  same  will  which 
gave  her  freedom,  this  does  not  defeat  the  estate  in  remainder  limited  to  her  issue, 
the  plaintiffs. 

1.  Because  in  the  case  of  Fable  and  others  vs.  executor  of  Fable,  February,  1838, 
2  Hill's  Ch.  400,  it  was  settled,  that  if  land  be  conveyed  to  a  slave,  liis  master 
would  be  seized  of  that  land  ;  not  for  himself,  but  only  until  office  found  for  the 
State  ;  and  that  a  bequest  to  slaves  is  not  void. 

Under  the  authority  of  this  case,  even  though  Barbara  Holmes  could  not  take 
in  her  own  right  the  life  estate  devised  to  her,  the  estate  in  remainder  would  not 
be  defeated. 

*2.  More  particularly,  because  in  the  said  case  of  Fable  and  Fable,  con-   r^^^cq 
veyances,  devises,  &c.,  to  slaves,  (quoad  being  void,)' a,ie  put  on  the  same   ^ 
footing  as  conveyances,  devises,  &c.,  to  aliens. 

Now  an  alien  can  be  a  devisee,  and  can  take  and  hold  until  office  found.  Vide 
Powel's  Devises,  p.  31(3. 

Also,  if  an  alien  holding  a  particular  estate  may,  by  fine,  &c.,  defeat  the  re- 
mainder, (Vide  Bowel,  p.  318  ;  2  Kent,  61,)  surelyhe  can  preserve  it. 

3.  Because  the  case  of  the  Escheator  vs.  Real  Estate  of  Hester  Smith,  4 
McCord,  452  and  455,  taken  in  connection  with  the  above  case  of  Fable  and  Fable, 
fully  supports  me  in  saying  that  no  more  than  Barbara's  life  estate  could  have 
been  escheated,  because  it  was  all  the  interest  she  had  in  the  land  ;  and  however 
her  interest  might  have  been  affected  by  the  laws  of  escheat,  it  had  passed  away ; 


654:  CHARLESTON,  FEBRUARY,  1842.      VOL.  II.  [*483 

and  the  estate  had  become  legally  vested,  according  to  the  limitations  of  the  will, 
in  her  issue,  the  plaintiffs,  who  labored  under  no  disabilities. 

4.  Because,  if  the  life  estate  was  void,  as  being  devised  to  one  incapable  of 
takin"-,  be  it  remembered  that  this  was  an  cxecntory  devise,  and  therefore  required 
no  particular  estate.     Vide  2  Blac.  Com.  173  ;  4  Kent,  236. 

V.  That  the  lands  in  dispute  were  not  bequeathed  to  Barbara  Holmes  in  fee 
simple ;  but  were  bequeathed  to  Barbara  Holmes  for  life,  with  remainder  to  her 
issue,  the  plaintiffs. 

1.  This  is  the  debateable  ground  ;  for  if  free  persons  of  color  cannot  hold  real 
estate,  and  if  Barbara  Holmes  could  not  take  a  life  estate  under  the  same  will 
which  gave  her  freedom,  the  defendant  will  not  forget  that  he  claims  the  land  in 
right  of  Barbara  Holmes,  as  devisee  in  fee  simple  under  Galphin's  will. 

2.  The  grand  rule  of  construction— "Devises  are  to  be  so  construed  as  if  pos- 
sible to  effectuate  the  entire  intention  of  the  testator,  if  that  intention  is  not 
opposed  to  the  policy  of  the  law  against  perpetuities,  and. to  this  all  other  rules  of 
construction  are  subordinate."     Bedon  vs.  Bedon,  2d  Bailey,  231. 

3.  The  codicil  (the  first;  devising  the  lands  in  dispute,  contains  no  words  of 
perpetuity  or  inheritance,  nor  any  words  indicating  an  intention  to  pass  a  fee. 
Without  waiving  the  argument  that  the  A.  A.  Ib24,  p.  23,  cannot  affect  a  will 
which  went  into  operation  in  17S2,  I  undertake  to  show  under  the  A.  A.  1S24, 
sf,AQi-,  tluit  no  construction  is  "consistent  with  the  will  of  the  testator  *expressed 

-■  and  implied, "  but  this  :  That  the  lands  devised  in  the  codicil  are  subject 
to  the  limitations  and  restrictions  mentioned  in  the  body  of  the  will — that  the 
codicil  changed  the  subject  matter,  but  not  the  terms  of  the  devise. 

1.  Because  Galphin  expressly  devised  a  life  estate,  and  not  a  fee  simple,  the 
words  which  he  used  at  that  time  conveying  no  other  meaning.  The  A.  A.  1824 
might  change  the  law,  but  it  could  not  reach  backwards  through  a  vista  of  forty 
years,  and  make  Galphin  mean  the  contrary  of  what  he  meant  and  said. 

2.  Because  an  examination  of  the  whole  will  and  the  codicils  shows  that  Galphin 
meant  to  settle  his  property  on  the  six  devisees,  (including  Barbara  Holmes, )  with 
limitations  and  remainders  in  favor  of  each  other.  This  is  expressed  in  the  will, 
and  there  is  notliing  to  contradict  it  in  the  codicils. 

3.  Because  a  comparison  of  the  words  and  expressions  used  in  the  will,  with 
the  words  and  expressions  used  in  the  codicil,  shows  that  by  the  codicil  the  tes- 
tator meant  merely  to  change  the  subject  matter  of  the  devise — to  put  one  tiact  of 
land  for  another. 

4.  Because,  on  inspecting  the  codicU,  we  find  that  the  testator,  having  in  the 
will  divided  certain  tracts  of  land  between  two  of  the  said  (6)  six  devisees,  meant 
in  the  codicil  merely  to  divide  those  same  tracts  among  three  of  the  said  six 
devisees. 

5.  Because  the  limitations  and  remainders  mentioned  in  the  will  are  obviously 
not  affected  by  the  codicil  as  tofre  of  the  devisees.  Therefore,  if  the  defendant's 
construction  be  correct,  it  will  follow  that  Barbara  Holmes  not  only  took  a  fee 
simple  in  tlu;  land  devised  to  her,  but  might  have  taken  as  survivor  to  each  and  all 
of  the  said  five  devisees,  none  of  whom  could  have  taken  as  survivor  to  her.  In 
otlier  words,  if  tlie  testator  meant  that  Barbara  Holmes  should  take  a  fee  simple 
under  the  codicil,  instead  of  a  life  estate  as  in  the  will,  he  surely  would  have 
altered  the  clause  of  survivorship  as  to  her. 

f).  ]5ecaus(;,  in  tlic  third  codicil,  wliich  does  givfe  Barbara  certain  property  abso- 
lutely, the  words  are,  "to  the  said  Barbara,  her  lieirs  and  assigns  for  ever." 

7.  Because,  thioughnut  the  will  and  codicil,  the  7nnst  minute  and  particular  at- 
tenliim  is  jiaid  to  winds  and  jihrases.  Evidently  it  was  drawn  by  an  expert. 
Evidently  if  a  fee  simple  had  been  intended  in  the  codicil,  appropriate  words  would 
have  been  used. 

*4851       *^"  J^*^'^'^'^^®)  ^^'''""Kliout  the  will  and  codicils,  there  are  not  less  than 
twenty-five  places  in   wliich  words  of  devise  and  bequest  are  used ;  and 
wlierover  the  testator  obviously  meant  a  fee  simi)le,  we  find  him  iising  words  of 
j»f  r[)etuity  or  inheritance  ;  where  not  a  fee,  those  words  are  wanting. 

!».  Because  the  v<!ry  words  of  the  codicil  are  conclusive.  The  testator  does  not 
say,  "  I  revoke  that  part  of  my  will  wherein  I  leave  to  the  said  Barbara  a  life- 
estate  in  the  land  below  Silver  Bluff,  and  bequeath  the  land  adjoining  the  point 


^485J 


B0T7ERS    ET    AL.    VS.    NEWMAN.  GoD 


to  the  said  Barbara,  her  heirs  and  assigns  for  ever.^^  But  he  says,  "I  revoke  that 
part  of  my  said  will  wherein  I  leane  to  the  said  Barbara  that  hind  below  Silver 
Bluff,  and  in  lien  thereof  I  leave  her  that  whole  tract  adjoininj;  the  point."  He 
uses  tbe  same  expression  when  referring  to  the  devise  in  the  will,  as  when  passing 
the  devise  in  the  codicil — "Wherein  I  leave,"  and  "I  leave;"  also,  "in  lieu 
thereof" — as  though  he  had  said,  "In  lieu  of  the  land  below  Silver  Bluff,  let 
Barbara  take  the  land  .adjoining  the  point."  If  so,  the  land  adjoining  the  point 
(which  is  the  land  in  dispute)  would  be  subject  to  the  same  limitations  as  the 
land  originally  devised. 

Such  being  the  intention  of  the  testator,  that  intention  must  prevail,  and  judg- 
ment be  entered  up  for  the  plaintiffs. 

Mr.  Patterson,  contra.  1.  Barbara  was  a  slave  at  the  time  of  the  death  of  tes- 
tator, could  not  take  by  devise,  and  the  estate  passed  to  the  residuary  legatee,  or 
to  the  heir  at  law.  1  Bail.  042,  Lenoir  vs.  Sylvester.  She  was  clearly  a  slave. 
Could  she  take  by  descent  or  purchase  ?  Certainly  not.  For  same  reason  she 
could  not  by  devise.     Coop.  Just.  411  ;  4  Eq.  Rep.  2G(J,  Bijnum  vs.  Bostioick. 

Shep.  Touch.  414.  If  a  devisee  be  incapable  of  taking  at  the  time,  the  devise 
fails.     1  P.  Wms.  500 ;  2  Pow.  Dev.  243. 

Assent  of  executor  to  devise  nugatory,  for  the  estate  must  pass  immediately  to 
devisee,  and  he  must  be  capable  of  taking  eo  instanti.  1  Blac.  Com.  372.  Thus 
the  proposition  is  made  out  that  Barbara  could  not  take. 

2.  As  to  construction  of  the  will.  If  Barbara  took  the  land  under  the  codicil, 
she  took  it  free  from  the  limitations  of  the  will.  2  Vern.  625.  She  takes 
under  the  former  only  half  the  quantity  devised  in  the  latter,  besides  that  the 
words  "the  whole"  are  *used  in  the  codicil.  If  he  did  not  suppose  he  p^^q/. 
was  revoking  the  limitations  by  the  codicil,  why  should  he  reannex  them  *- 
to  the  devise  to  Judith  ?     Co.  Lit.  210,  a  rule  of  construction  of  wills. 

Jac.  L.  D.  Marriage,  2  Kent's  Com.  215,  N.  A. 

In  the  will  these  limitations  apjily  to  the  negroes  as  well  as  the  lands.  Yet  in 
the  third  codicil,  the  bequest  of  the  negroes,  there  to  Barbara,  is  expressly  abso- 
lute and  in  fee.     Dunlap  vs.  Crawford,  2  McC.  Ch.  Rep.  171. 

Curia,  per  Earle,  J.  Whatever  may  be  said  about  public  policy, 
and  whatever  may  be  the  future  consequences,  it  is  now  a  settled  point, 
that  a  free  person  of  color,  by  the  laws  of  this  State  may  take  and  hold, 
convey  by  deed,  dispose  of  by  will,  or  transmit  to  his  heir  at  law,  both 
real  and  personal  estate  Barbara  Holmes,  the  ancestor  of  the  plaintiffs, 
and  under  whom  the  defendant  claims,  was  a  slave  at  the  time  of  the 
devise  in  question.  The  plaintiffs  who  brinjr  this  action  to  recover  the 
land  must  show  a  perfect  title  in  tliemselves.  In  order  to  do  this,  they  must 
show,  1,  that  Barbara,  although  a  slave  of  the  testator  at  his  death,  could 
take,  and  did  take,  under  the  will ;  or  2,  that  the  remainder  to  the  plain- 
tiffs is  good,  by  way  of  executory  devise,  although  the  devise  of  the  life 
estate  to  Barbara,  may  be  void  as  to  one  incapable  of  taking  ;  3,  that 
her  marriage  with  Holmes  was  a  lawful  and  valid  marriage,  which 
rendered  the  issue  legitimate,  and  capable  of  taking  the  remainder  limited 
to  them  ;  4,  that  the  codicil  is  not  a  revocation  of  the  will,  so  far  as 
regards  the  remainder  to  the  plaintiffs,  but  that  under  it  Barbara  took 
only  a  life  estate,  subject  to  the  same  limitations  and  conditions  which 
are  annexed  to  the  devise  in  the  will  itself. 

Several  of  these  propositions  involve  points  that  are  not  free  from  jdifiS- 
culty,  and  on  which  tliere  might  be  some  diversity  of  opinion,  but  as  the 
judgment  of  the  majority  of  the  Court  has  been  formed  from  a  construc- 
tion of  the  codicil  alone,  it  has  been  deemed  utuiecessary  to  consider  any 
of  the  other  questions  raised  by  the  plaintill's  case,  or  to  express  any 
opinion  upon  them.     If  in  fact  the  will,  as  far  as  regards  the  remainder 


656  CHARLESTON,  FEBRUARY,  1842.      VOL.  II.  [*486 

to  the  plaintiffs,  is  revoked  by  the  codicil,  then  it  is  needless  to  inquire 
whether  Barbara  could  take  her  freedom  and  the  devise  by  the  same 
instrument ;  or  whether  the  remainder  must  take  effect  by  way  of  execu- 
tory devise ;  or  to  consider  the  validity  of  the  defendant's  marriaj^e  with 
^    '  -,  Holmes.     The  civil  status  of  a  person  circumstanced  ''as  Barbara 

J  was,  especially  in  regard  to  her  capacity  to  take  and  hold  pro- 
perty, is  not  easy  to  define. (a)  A  slave  may  acquire  property,  but  as  he 
cannot  hold,  it  inures  to  the  benefit  of  the  owner.  At  the  date  of  this 
will  there  was  no  restraint  on  the  power  of  manumission,  and  Barbara 
was  lawfully  made  free,  exempted  from  the  control,  and  placed  beyond  the 
reach  of  the  heir  at  law.  Freedom,  when  bestowed  upon  a  slave  by  will, 
is  usually  spoken  of  as  a  legacy,  which  requires  the  assent  of  the  execu- 
tor as  other  bequests.  The  analogy  is  not  perfect,  and  I  am  not  sure  that 
some  confusion  of  ideas  is  not  created  by  the  use  of  the  same  terms,  in 
reference  to  subjects  which  seem  to  be  of  different  natures.  If  property 
be  given  to  a  slave  the  master  may  seize  it  presently.  But  freedom 
bequeathed  to  a  slave  of  the  testator,  is  not  only  inconsistent  with  any 
claim  of  property  in  the  heir  at  law,  but  a  solemn  declaration  that  he 
shall  not  seize  or  hold  him  as  property.  Should  the  executor  withhold 
his  assent  to  the  legacy  of  freedom  to  the  slave,  could  the  heir  at  law 
retain  him  in  slavery  ?  But  in  this  case  the  testator  died  in  IT 82,  and 
Barbara  immediately  went  into  the  enjoyment  of  her  freedom,  and  into 
possession  of  the  land,  and  so  remained  until  her  death  in  1830.  The 
assent  of  the  executor  may  be  necessary  to  the  enjoyment  of  the  legacy 
in  possession,  but  not  so  to  enable  it  to  vest,  which  1  apprehend  it  did  at 
the  instant  of  the  death,  subject  only  to  the  claim  of  creditors,  and  the 
power  of  the  executor  to  make  her  liable  for  debts.  Without  this,  if  a 
slave  can  take  at  all,  subject  to  the  right  of  escheat,  or  to  the  superior 
claim  of  the  master,  then  the  devise  also  vested  in  Barbara,  and  as  soon 
as  from  lapse  of  time  the  assent  of  the  executor  to  the  legacy  of  freedom 
might  be  presumed,  and  the  claims  of  creditors  to  be  satisfied  or  barred 
then  her  title  became  absolute  and  perfect.  (6)  If  twenty  years  were 
necessary  for  this  purpose,  she  had,  after  the  expiration  of  that  terra, 
twe)ity-ciglit  years  of  quiet  and  undisturbed  possession  of  the  land,  which 
would  be  sufficient  to  give  her  a  title,  as  a  free  person  of  color,  against  the 
heir  at  law,  and  all  the  world,  unless  the  plaintiffs  are  entitled  to  the  re- 
mainder they  claim,  after  the  determination  of  what  they  allege  to  have 
been  her  life  estate. 

In  coming  to  a  conclusion  upon  the  construction  of  the  codicil,  we 
should  have  no  difficulty  if  we  were  to  confine  our  attention  to  the  words 
of  the  devise.  It  is  a  gift  of  land  to  Barbara,  without  words  of  per- 
*488''  P'^*'"*^^  ^^"  °^  limitation.     The  Act  of  1824  *has  furnished  the 

-*  rule  of  interpretation  for  such  a  devise. (c)  "Every  gift  of  laud  by 
devise  shall  be  considered  as  a  gift  in  fee  simple,  unless  such  con- 
struction be  inconsistent  with  the  will  of  the  testator,  expressed  or 
implied."  The  word  "hereafter,"  in  the  first  part  of  the  section,  is  held 
to  relate  to  the  time  of  adjudication,  in  connection  with  the  word  "  con- 
sidered," and  not  to  the  date  of  the  devise.    And  therefore  wills  executed 

(a)  fJupra,  471.     An. 

(Ii)  Him  Vimjard  vs.  PassaltKiur,  2  Strob.  536.     An. 

(r)  (i  Stat.  238,  §  7.     An. 


*488]  B0T7ERS   ET    AL.    VS.    NEWMAN.  657 

before,  as  well  as  since  the  Act,  have  been  construed  according;  to  its 
provisions.  Hall  et  al.  vs.  Goodwi/n  et  al.,  4  ;^[cCord  442  ;  Bun  lap 
vs.  Crawford,  2  M'C.  Ch.  R.  ITl.  The  ground  of  the  argument  for 
the  plaintiffs  is,  that  such  construction  is  inconsistent  with  the  will  of  the 
testator,  as  implied  from  the  context  of  the  instrument,  and  the  views 
■which  have  been  urged  upon  the  court  to  sustain  that  ground  are 
ingenious  and  plausible.  Admitting  the  rule  to  be  that  the  intention  of 
the  testator  is  the  object  of  inquiry,  and  when  ascertained  is  to  govern  in 
the  construction,  yet  when  the  words  used  are  plain  and  unambiguous, 
and  have  a  certain  and  definite  legal  import,  it  is  not  enough  for  the 
plaintiff  to  make  out  a  case  that  is  plausible  or  probable.  The  intention 
to  give  the  words  a  different  and  more  limited  meaning,  must  be  made 
clear  and  manifest.  A  majority  of  the  court  thinks  that  this  has  not 
been  done.  Without  minutely  reviewing  all  the  grounds  of  argument 
which  have  been  taken  for  the  plaintiffs,  I  will  briefly  ])resent  the  reasons 
for  supposing  that  the  legal  interpretation  of  the  words  is  supported  by 
the  apparent  intention  of  the  testator  ;  and  in  doing  so,  I  shall  notice 
incidentally  some  of  the  arguments  of  the  plaintiff's  counsel. 

In  the  will,  the  testator  devises  in  consecutive  clauses,  first  to  Judith, 
then  to  Barbara,  each  one  half  of  certain  lands  containing  thirteen  or 
fourteen  hundred  acres,  to  themselves  for  life,  with  the  power  of  disposing, 
and  in  default,  with  remainder  over.  The  language  of  the  two  clauses  is 
identical,  except  the  names  of  the  devisees  and  the  description  of  the 
lands.  In  the  codicil  the  testator  uses  the  following  language.  "  I  do 
hereby  revoke  that  part  of  my  will  wherein  I  bequeathed  to  the  within 
named  Judith  and  Barbara  the  three  tracts  of  land  between  them."  Had 
the  testator  stopped  here,  and  made  no  farther  devise  in  favor  of  either, 
can  there  be  a  doubt  that  the  original  devise,  both  life  estate  and  remain- 
der would  have  been  gone  ?  But  the  testator  proceeds  in  the  next  para- 
graph as  follows  :  "I  bequeath  to  the  said  Judith  the  place  whereon  she 
now  lives,  adjoining  John  Newman's  land,  ^containing  three  bun-  r^ioq 
dred  acres,  under  the  contingencies,  limilalions  and  restrictions  ^ 
mentioned  in  my  said  will.''  Had  he  afterwards  made  no  provision  for 
Barbara,  it  is  equally  clear  that  the  claim  of  the  plaintiffs,  to  the  remain- 
der under  the  original  devise,  would  have  been  extinguished  along  with 
the  life  estate  of  their  mother.  The  whole  of  the  two  clauses  in  favor  of 
Judith  and  Barbara,  were  expressly  revoked ;  and  the  whole  subject 
matter  was  stricken  out  of  the  will.  The  testator  then  inserts  seven  new 
clauses  in  the  codicil,  in  four  of  them  revoking  so  many  clauses  of  the 
former  will,  and  in  the  others  bequeathing  three  new  legacies.  He  then 
proceeds  as  follows  :  "  I  revoke  that  part  of  my  said  will  wherein  I  leave 
to  the  said  Barbara  that  land  below  Silver  Bluff,  being  a  part  of  three 
tracts  of  land,  and  in  lieu  thereof,  I  leave  her  that  whole  tract  adjoining 
the  point,  containing  upwards  of  three  hundred  acres,  the  lowermost  part 
of  the  said  land.  The  land  between  the  two  parcels  I  left  to  the  said 
Judith  and  Barbara,  I  leave  to  the  said  Thomas,  son  of  the  said  Rachel 
Dupee."  Inasmuch  as  the  testator,  throughout  the  will,  when  he  meant 
a  life  estate,  had  used  the  appropriate  words  of  limitation,  and  in  like 
manner  when  he  meant  an  estate  in  fee  had  used  words  of  perpetuity,  it 
is  argued  that  the  devise  to  Barbara  in  the  codicil  by  the  words,  "  I 
leave  her  that  whole  tract,"  is  to  be  regarded  as  a  mere  substitution  of 
ToL.  I.— 43 


G5S  CHARLESTON,  FEBRUARY,  1S42.      VOL.  II.  [*489 

one  portion  for  another,  to  be  lield  for  life  only,  and  subject  to  the  limi- 
tations of  the  original  devise ;  and  that  this  is  plainly  implied  from  the 
context.  As  he  used  words  then  deemed  appropriate  to  convey  a  life 
estate,  it  is  supposed  he  meant  no  more.  But  although  words  of  inheri- 
tance previous  to  1824,  in  one  of  our  courts  of  appeal,  were  held  neces- 
sary to  create  a  fee,  in  the  other  they  were  not.  And  the  settled  law 
now  is  that  words  of  inheritance  were  not  necessary  for  that  purpose, 
even  in  1778;  but  that  the  words  of  the  codicil,  without  more,  created  a 
fee.  The  other  ground  of  implying  the  intention  that  the  devise  in  the 
codicil  should  be  for  life  and  subject  to  the  limitations  of  the  will,  would 
have  great  force,  were  it  not  met  by  an  argument  on  the  other  side 
equally  apparent  on  the  face  of  the  will,  by  which  it  is  neutralized,  if  not 
destroyed.  As  I  have  shown,  by  the  first  clause  of  the  codicil,  the  clauses 
in  the  will  containing  the  original  devises  to  Judith  and  Barbara  were 
entirely  revoked  in  words  at  least ;  when  the  testator  proceeded  to  devise 
♦iqm  ^^^^^  lands  to  Judith,  to  be  held  on  the  same  *terms  and  limita- 
-'  tion,  he  considered  it  necessary  to  annex  words  plainly  and  unequi- 
vocally expressing  that  intention,  "  under  contingencies,  limitations  and 
restrictions  mentioned  in  my  said  will."  If  the  subsequent  devise  to 
Barbara  had  followed  in  immediate  juxtaposition,  the  argument  for  the 
plaintiffs  would  have  been  strengthened.  But  after  introducing  many 
clauses  on  different  subjects,  he  gives  her  in  lieu  of  the  land  devised  to 
her  in  the  will,  "  that  whole  tract,"  &c.,  without  more.  If  the  words  of 
restriction  had  not  been  annexed  to  the  devise  to  Judith  in  the  codicil, 
she  would  have  taken  a  fee  simple.  Because  the  testator  intended  that 
she  should  not  take  a  fee  simple,  but  only  a  life  estate,  he  annexed  them. 
If  he  intended  that  Barbara  should  take  no  more,  it  was  equally  neces- 
sary to  annex  the  words  subjecting  her  devise  to  the  former  limitations. 
And  it  is  a  strange  argument  to  say,  that  because  he  omitted  the  words, 
he  intended  to  annex  the  meaning.  So  likewise  of  the  devise  to  Tho- 
mas, son  of  Rachel  Dupee,  of  the  land  between  the  two  parcels,  the 
words  plainly  import  a  fee.  Are  they,  too,  to  be  construed  as  creating  not 
only  a  life  estate,  but  as  subjecting  it  to  the  limitations  of  the  original 
will  ?  And  if  so,  what  limitations  ?  It  is  more  rational  to  conclude,  as 
the  testator  seems  to  have  known  very  well  what  he  was  about,  and  to 
have  understood  what  words  were  necessary  to  convey  his  meaning,  that 
if  he  had  intended  the  last  devise  to  Barbara  to  be  for  life  only,  and  to 
subject  it  to  the  limitations  of  the  former  devise,  he  would  have  expressed 
his  intention  in  unequivocal  language.  If  his  object  was  merely  to  make 
an  additional  provision  for  Thomas,  this  would  have  been  easily  accom- 
plished by  devising  him  the  intermediate  tract,  without  further  altering 
the  clause  as  to  the  others.  It  is  supposed  that  the  argument  for  the 
plaintiffs  is  much  strengthened  by  this  consideration,  that  the  remain- 
ders in  the  will  are  not  affected  by' the  codicil,  as  to  five  of  the  devisees, 
as^  to  each  of  whom  Barbara  might  have  taken  as  survivor,  although 
neither  could  have  taken  as  survivor  to  her.  Besides  the  land  de- 
scribed in  the  clause  of  revocation,  Barbara,  as  well  as  each  of  the 
other  children,  had  a  devise  of  certain  ceded  lands  in  Georgia.  But 
by  the  same  codicil  all  these  devises  of  ceded  lands  are  revoked  ;  and 
the  testator  bequeaths  to  each  in  lieu  thereof  a  legacy  of  fifty  pounds 
sterling.  If,  then,  the  other  devise  to  Barbara  was  wholly  revoked  by  the 
codicil,  she  took  no  land  under  the  will.     And  it  may  well  be  questioned 


*490]  BOWERS    ET    AL.    V8,    NEWMAN.  659 

whether  *hcr  right  of  survivorship  in  regard  to  the  hinds,  was  not  r^.Aq-i 
gone.  But  the  answer  to  this  suggestion  may  be  found  in  the  '- 
fact,  that  by  a  subsequent  codicil  tiie  testator  bequeaths  to  Barbara,  her 
heirs  and  assigns,  five  slaves  and  their  issue,  in  addition  to  her  fornaer 
legacy  under  the  will.  In  these  the  other  legatees  had  no  interest  as 
survivors,  although  lier  own  right  in  regard  to  their  legacies  remained 
unimpaired.  We  cannot  therefore  undertake  to  say  that  the  testator,  on 
reconsideration,  may  not  have  intended  in  favor  of  Barbara  a  more  bene- 
ficial i)rovision  than  was  made  at  first.  In  regard  to  the  negroes  he  has 
certainly  so  intended  ;  and  in  regard  to  the  lands,  as  he  used  words 
legally  importing  that  intention,  we  have  no  sufficient  evidence  from  the 
context,  either  in  regard  to  language,  arrangement  or  circumstances,  to 
satisfy  us  that  his  intention  was  otherwise.  We  are  therefore  of  opinion, 
that  the  codicil  was  an  entire  revocation  of  the  original  devise,  under 
which  the  plaintiffs  claim  the  remainder  ;  that  the  limitations  in  favor  of 
the  plaintiffs  do  not  attach  to  the  devise  in  favor  of  Barbara  in  the  codi- 
cil ;  and  that  they  cannot  recover  in  this  action,  whatever  may  be  the 
estate  of  Barbara,  or  howsoever  acquired  ;  whether  she  took  under  the 
codicil  an  estate  for  life  or  in  fee,  or  as  a  free  colored  person  has  acquired 
title  by  possession.  The  motion  is  refused,  and  the  judgment  of  the  Cir- 
cuit is  affirmed. 

Gantt,  Richardson  and  Evans,  JJ.,  and  Johnston  and  Dunkin, 
Chancellors,  concurred. 

Butler,  J.,  having  been  of  counsel  in  the  cause  gave  no  opinion. 

[The  opinion  of  Chancellor  Harper  was,  by  some  means,  lost  or  mislaid,  so 
that  a  copy  could  not  be  furnished  the  reporter,  to  present  with  the  report  of  this 
case.  The  annexed  suinmary,  however,  of  his  opinion,  dissenting  from  a  majority 
of  the  Court,  has  been  very  kindly  furnished  the  reporter  by  his  Honor,  Judge 
O'Neall,  and  will  present  the  points  maintained  by  the  Chancellor.     Reporter.  J 

Harper,  Ch.,  maintained,  1st,  that  a  slave  could  acquire  and  hold  real 
and  personal  property. 

2d.  That  the  slave  could  both  take  freedom  and  property,  by  the  same 
instrument,  a  will. 

3d.  That  marriage  was  merely  a  civil  contract,  and  that,  *there-  r^^,  >  qo 
fore,  it  was  good  and  legal  between  a  white  person  and  a  free  ■- 
negro. 

4th.  That  the  descendants  of  a  free  negro,  born  in  lawful  wedlock, 
might  take  as  devisees,  under  the  description  of  issue,  or  as  heirs. 

5th.  That  the  limitation  in  the  will  extended  to  the  codicil,  and  was 
good,  and  under  it  the  plaintiffs  were  entitled  to  recover. 

O'Neall,  J.  I  agree  with  Chancellor  Harper  in  all  the  conclusions 
to  which  he  has  come;  and  generally  in  the  reasons  which  has  led  him  to 
thera.  But  on  the  first  question  made,  I  do  not  agree  to  his  reasoning 
in  all  respects.  That  a  slave  is  to  be  regarded  as  on  the  footing  of  an 
alien  enemy,  is  not  in  my  judgment  correct.  Slavery  in  England,  and  in 
many  other  countries,  originated  out  of  that  hard  condition  being  imposed 
on  captives  taken  in  war.     But  civilization  long  since  wiped  off  this  stain 


660  CHARLESTOX,  FEBRUARY,  1842.      YOL.  11.  [*492 

on  contests  between  nation  nnd  nation.     The  captive  now  is  no  where, 
except  among  savages,  regarded   as  a  slave.      In  this  State,  the   only 
slaves  from  captivity  were"  the  few  Indians  who  in  the  early  settlement 
were  thus  treated.     The  great  body  of  slaves  are  those  who  have  been 
acquired  by  purchase.      So  far  as  human  beings  can  be  considered  as 
goods  and  chattels,  they  have  been  and  must  continue  to  be  SQ  regarded. 
That  that  is  their  legal  position  is  not  questioned,  but  it  is  supposed 
that  they  must  have  the  consideration  of  men  laboring  under  temporary 
legal  disabilities,  in  order  to  keep  up  the  harmony  of  the  law.    That  there 
isa  great  deal  of  truth  in  this  general  position,  I  freely  concede.     But  I 
do  not  think  that  they  can  be  regarded  as  laboring  under  the  disability 
of  an  alien  enemy.    For,  remove  the  disability,  and  what  must  be  the  legal 
result?  they  then  stand  as  all  other  men  possessed  of  their  political,  as  well 
as  civil  rights.     To  emancipate  would  be  to  naturalize  a  slave,  if  he  is 
legally  to  be  regarded  as  an  alien  enemy.    This  never  can  be  the  result  in 
■South  Carolina.    The  negro  or  his  descendant  is  not,  cannot  be,  a  citizen. 
The  true  notion  seems  to  me  to  be  that  the  negro  slave  is  to  be  regarded 
as  a  being  of  an  inferior  caste,  not  having,  and  never  to  have,  any  politi- 
cal status;  but  capable  of  acquiring  and  holding  property  by  the  consent 
of  his  master.     Every  acquisition  thus  made,  is  for  the  master's  benefit. 
For  if  it  either  feeds  or  clothes  him,  it  so  far  relieves  the  master  from 
expense  on  his  account.      But  when  we   refer   to   the  Act  of  1144, 
^       -,  *and  every  Act  for  the  regulation  and  government  of  slaves 
-J  passed  since,  we  find  that  it  was  no  novelty  to  the  legislators  of 
this  State  that  slaves  should  own  property. 

For  the  present,  this  general  statement  of  my  views  on  this  portion  of 
the  subject  will  be  sufficient.  Consistently  with  them,  I  think  that  the 
consent  of  the  master  to  the  possession  of  property  by  his  slave  Barbara 
until  she  became  free,  is  sufficiently  manifested  by  his  will.  There  would, 
however,  be  much  difiSeuIty  in  saying  that  she  could  thus  acquire  real 
estate.  But  my  mind  is  relieved  from  all  difficulty  by  two  considerations. 
1st.  I  hold  that  her  freedom  and  estate  both  took  effect  at  the  same 
instant,  the  death  of  the  testator.  For  the  assent  of  the  executor  to  the 
freedom  of  Barbara,  made  her  free  at  and  from  his  death.  2d.  On  look- 
ing to  the  will  it  will  be  seen  that  the  executors  are  made  "  guardians"  of 
the  real  and  personal  estate  devised.  This  constituted  them  trustees  to 
take  and  to  hold,  until  all  disabilities  (if  any  existed)  were  removed. 

See  Supra,  472.  Also,  as  to  the  legal  capacity  of  a  free  negro,  Eschcator  vs. 
Estate  of  Uardcastle,  Ilarp.  L.  495,  Appendix.     An. 


APPENDIX  TO  VOL.  II. 


Zach.  Allen  vs.  Noel  Johnson. 

1.  There  is  a  material  difference  between  proving  a  deed  as  a  part  of  a  chain  of 
title,  and  introducing  a  paper  as  color  of  title  to  show  the  extent  of  a  party's 
possession.  In  the  first  case  it  must  not  only  be  proved  to  have  been  in  exis- 
tence before  the  party  acquires  rights  under  it,  but  when  it  purports  to  be  less 
than  thirty  years  old,  its  execution  must  be  strictly  proved. 

2.  To  admit  a  deed  in  evidence  as  an  ancient  deed,  continuous  possession  under 
it  for  thirty  years  is  not  always  necessary.  A  less  period  than  this  will  suffice, 
if  there  has  been  no  inconsistent  possession  to  conflict  with  it.  A  deed  being 
found  in  an  office,  recorded,  may  be  sufficient  evidence  sometimes ;  and  at  all 
times  such  testimony  may  be  received  to  show  the  antiquity  of  such  a  paper. 

3.  When  a  party  indicates  the  boundaries  of  his  land  by  stakes,  for  more  than 
ten  years,  by  which  he  shows  the  extent  of  his  possession,  and  the  boundary 
thus  indicated  is  made  known  to  the  adverse  party,  who  is  interested  to  deny 
it,  and  they  acquiesce  therein,  it  is  a  good  title  to  the  laud  by  possession,  with 
a  color  of  title. 

Before  Evans,  J.,  at  Chesterfield,  Fall  Term,  1836. 

The  facts  of  this  case  appear  from  the  circuit  report,  which  is  as 
follows  : 

This  was  an  action  of  trespass  to  try  title.  The  facts  of  the  case,  so 
far  as  is  necessary  to  nnderstand  and  decide  the  grounds  made  in  the 
notice,  were  these.  The  plaintiff  claimed  the  land  under  a  grant  to  one 
Pittman,  which,  located  according  to  its  boundaries,  cornered  the  locus 
in  quo.  Pittman  conveyed  to  Harrell  in  1819  ;  Harrell  to  Mrs.  Cook 
in  the  same  year,  from  whom  the  plaintiff  derives  his  title.  Tlie  subject 
in  controversy  was  in  part  a  triangular  piece  of  laud  containing  forty 
acres.  The  defendant  claimed  it  under  a  deed  from  James  Killgore  to 
himself,  dated  in  1808,  in  which  it  is  described  as  a  part  of  a  tract  of 
land  granted  to  Francis  Young  for  two  hundred  acres,  in  1749.  Only 
one  corner  of  this  Young  tract  was  found  ;  in  locating  from  which  by 
course  and  distance,  there  being  no  other  way  of  closing  the  lines,  the 
land  in  dispute  was  not  included.  The  deed  from  Killgore  *to  r^^ng 
defendant  included  the  whole  of  the  land  in  dispute  ;  but  as  the  ^ 
Young  grant  could  not  be  located  so  as  to  cover  the  disputed  land,  the 
defendant  could  only  avail  himself  of  it  to  make  out  a  title  by  possession. 
To  enable  him  to  do  this  it  was  necessary  to  prove  the  deed,  and  posses- 
sion under  it.  The  deed  was  dated  in  1808.  On  the  back  was  a  pro- 
bate by  one  of  the  witnesses  before  a  justice  of  the  peace,  in  1811  ;  but 
the  deed  had  not  been  recorded.  The  grantor,  Killgore,  made  the  initials 
of  his  name  for  a  mark,  and  a  witness  who  had  often  seen  liim  sign  iiis 
name  in  this  way,  swore  he  believed  it  to  be  genuine.  The  witnesses 
wrote  bad  hands,  indicating  they  were  illiterate.  One  was  dead,  and  the 
other  had  removed  many  years  from  the  State.     Full  twenty  years  ago 


662  APPENDIX    TO    VOL.    II.  [*496 

the  defendant  cleared  a  part  of  this  land,  and  had  been  in  possession 
ever  since.  The  field  which  he  claimed  contained  eight  or  ten  acres, 
but  only  a  part  of  it  (the  witness  says  one-third)  was  of  the  disputed 
land.  Two  witnesses  proved  that  seventeen  years  ago,  which  was  soon  after 
Mrs.  Cook  bought  the  Pittraan  land,  Johnson,  the  defendant,  put  up  a 
line  of  stakes  from  corner  to  corner  on  the  land  conveyed  to  him  by  Kill- 
gore.  These  stakes  were  seen  by  four  of  the  witnesses,  and  one  of  thera 
proved  that  after  the  stakes  were  put  up,  Johnson  sent  for  Mrs.  Cook, 
and  told  her  the  stakes  were  the  line  between  them,  and  if  she  trespassed 
beyond  it  he  would  sue.  She  never  set  up  any  claim  to  the  land  beyond 
the  stakes,  and  frequently  cautioned  those  who  worked  for  her,  not  to  go 
on  Johnson's  land.  I  admitted  Killgore's  deed  to  go  to  the  jury,  as  an 
ancient  paper.  I  thought  its  antiquity  sufficiently  established.  It  was 
proved  before  a  justice  of  the  peace,  in  1811,  and  the  justice  was  the 
same  Harrell  who  conveyed  the  land  to  Mrs.  Cook.  He  has  been  gone 
from  the  country  fifteen  or  sixteen  years.  The  proof  of  Harrell's  signa- 
ture to  the  probate  was  not  very  full,  but  I  thought  sufficient  to  go  to 
the  jury.  The  possession  under  the  deed  was  twenty-one  years,  of  a  part, 
and  the  assertion  of  title  to  the  whole  by  setting  up  the  stakes,  seventeen 
years.  The  presumption  of  a  grant  is  now,  I  think,  clearly  established 
at  twenty  years,  and  as  a  necessary  consequence  of  this,  the  execution  of 
a  deed  could  be  presumed  also.      1  Hill,  222  ;  2  Hill,  493,  592. 

In  submitting  this  case  to  the  jury,  I  told  them  that  according  to  the  view 
which  I  took  of  the  Young  grant,  it  could  not  be  located  so  as  to  cover  the 
disputed  land,  and  as  a  consequence  the  ])laintiCf  was  entitled  to  recover, 
^  „..-,  unless  the  defendant  was  protected*  by  the  Statute  of  Limitations. 
'-I  On  this  subject  I  told  the  jury  that  possession  of  a  part  of  the 
land  adversely  to  the  claims  of  others,  gave  a  good  title,  after  ten  years, 
to  the  extent  of  the  tenant's  claim.  The  evidence  of  this  claim  was  what 
was  usually  called  color  of  title.  It  might  be  in  writing,  as  a  grant,  a 
deed,  a  contract  to  purchase,  or  bond  to  make  titles  which  so  described 
the  land  as  to  render  it  susceptible  of  identity,  or  it  might  be  in  parol, 
as  ])roof  that  he  had  marked  out  the  boundaries  of  his  land  by  clear  and 
defined  lines,  so  as  to  indicate  to  the  owner  the  extent  of  what  he  claimed. 
There  is  no  question  that  the  defendant  has  been  in  possession  of  a  part 
of  the  land  for  a  much  greater  period  than  the  statute  of  limitations 
required,  and  if  the  deed  from  Killgore  to  Johnson  was  a  genuine  deed, 
it  was  such  color  of  title  as  would  give  the  defendant  the  wliole  forty 
acres.  15ut  independently  of  this  deed,  if  the  defendant  marked  out  his 
lines  by  running  a  line  of  stakes  from  corner  to  corner,  and  more  espe- 
cially if  he  gave  Mrs.  Cook,  the  then  owner  of  plaintiff's  land,  notice  of 
the  extent  of  his  claim,  that  this  was  color  of  title,  and  would  give  him 
a  right  to  tiie  whole  disputed  land. 

The  jury  found  for  the  defendant. 

Plaiiitiffappoals.  1.  Because  his  Honor  crrcMl  in  charging  the  jury,  that 
the  possession  by  dtifendant  of  a  smull  portion  of  tlie  land  over  the  I'ittnian 
line,  was  a  suflicic.-nt  po.sse.'^ssion  to  give  liim  a  title  by  the  Statute  of  Limita- 
tions to  the  forty  acres,  included  in  the  deed  from  Killgore  to  defendant, 
inusmiich  us  the;  deed  was  not  located. 

2.  BecauHehis  Honor  erred  in  charging  the  jury,  that  even  if  they  considered 
the  deed  from  Killgore  to  defendant  spurious,  yet  if  they  believed  that  the 


*497]       ALLEN  VS.   JOHNSON.— 1836.        663 

defeiiclant  put  up  the  line  of  stakes  from  the  pine  corner  in  the  new  jTronnd  to 
tlie  pine  stump  in  the  old  field,  his  possession  of  a  piece  of  the  old  fiehl  l)elow 
the  new  ground  for  ten  years,  gave  him  a  title  under  the  Statute  of  Limitations, 
up  to  the  stakes. 

3.  Because  the  Court  charged,  that  the  stakes  was  a  sufficient  indication  of 
the  extent  of  defendant's  claim  ;  that  if  defendant  had  in  his  possession  any 
part  of  the  land  within  the  stakes  for  ten  years,  he  would  have  a  statutory  title 
to  the  stakes. 

4.  Because  the  Court  erred  in  permitting  the  defendant  to  give  in  evidence 
the  deed  from  Killgore  to  defendant  for  forty  acres,  as  *au  ancient  deed,  i*^oq 
without  proof  of  its  execution,  or  possession  under  it.  L 

Curia,  per  Butler,  J.  There  is  a  material  difTerence  between 
proving  a  deed  as  a  part  of  a  chain  of  title,  and  introducing  a  paper  as 
color  of  title  to  show  the  extent  of  a  party's  possession.  In  the  first 
case,  it  must  not  only  be  proved  to  have  been  in  existence  before  the 
party  acquires  rights  under  it,  but  when  it  purports  to  be  less  than  thirty 
years  old,  its  existence  must  be  strictly  proved.  The  deed  from  Killgore 
to  defendant  does  not  purport  to  be  thirty  years  old  ;  and  its  execution 
was  not  otherwise  sufficiently  proved  ;  and  if  it  had  been  offered  as  a  part 
of  defendant's  chain  of  title,  he  not  having  had  sufficient  possession  to 
give  him  title  to  any  part  of  the  land,  it  was  not  legally  proved.  To 
admit  a  deed  in  evidence  as  an  ancient  deed,  continuous  possession  under 
it  for  thirty  years  is  not  always  necessary.  The  primary  object  is  to  show 
that  the  deed  has  had  an  existence  for  thirty  years.  To  do  this,  posses- 
sion under  it  for  the  whole  length  of  time  is  the  best  evidence  ;  but  a  pos- 
session of  a  shorter  period  of  time  might  suffice,  if  there  has  been  no 
inconsistent  possession  to  conflict  with  it.  A  deed  being  found  in  an  office, 
recorded,  may  be  sufficient  evidence,  sometimes  :  and  at  all  times  such 
testimony  may  be  received  to  show  the  antiquity  of  a  paper.  These 
principles  are  discussed  and  explained  in  the  case  of  Robertson  vs.  Craig 
and  icife,  1  Hill,  389.  Chancellor  Harper  does  not  lay  down  the  law 
in  that  case,  as  contended,  that  there  must  be  a  continuous  possession 
under  a  deed  for  thirty  years,  to  admit  it  in  evidence  as  an  ancient  deed. 
Upon  an  examination  of  his  opinion,  he  rather  comes  to  a  diflerent  con- 
clusion. But  that  which  purports  to  be  a  deed  from  Killgore  to  defendant 
was  properly  admitted  by  the  presiding  Judge,  as  a  paper  to  show  the 
extent  of  defendant's  possession  ;  and  the  only  question  was,  was  that 
deed  in  existence  before  the  defendant  went  into  possession  of  his  land  ? 
For  it  is  admitted  that  it  covers  the  land,  and  it  was  clearly  proved  that 
defendant's  possession  was  more  than  ten  years.  I  think  it  quite  clear 
that  the  deed  was  in  existence  at  the  time  defendant  took  possession,  and 
it  seems  equally  clear  that  he  took  possession  and  held  under  it;  at  least, 
this  is  a  fact  wliich  has  been  established  by  tlie  verdict  of  the  jury.  But 
on  another  ground  there  was  color  of  title.  The  defendant  had  indicated 
for  more  than  ten  years  the  extent  of  his  *po.ssession  by  putting  r^c «qq 
up  stakes.  The  boundary  thus  indicated  was  made  known  to  ^ 
Mrs    Cook  who  was  interested  to  deny  it  and  she  acquiesced  in  it. 

The  motion  for  a  new  trial  is  refused. 

Evans,  Earle,  Gantt  and  Richardson,  JJ.,  concurred. 

Clinton  and  Ilanna,  for  the  motion.      Graham,  contra. 

As  to  evidence  of  ancient  deeds,  see  1  Rich.  53;  Cher.  82;  1  Bar.  3Gi;  Rice, 
106  ;  2  N.  &  McC.  40(3,  55  ;  1  Sp.  191.     An. 


QQ4:  ♦    APPENDIX    TO   YOL.    II.  [*499 


Cornelia  M.  De  Millen,  per  pro.  ami,  vs.  James  McAlliley. 

Wliere  a  deed  of  gift  from  a  parent  to  his  daughter  (the  plaintiff)  of  a  negro, 
contained,  among  other  things,  after  appointing  trustees,  the  following  pro- 
visoes, "  Provided  always,  and  these  presents  are  upon  this  special  trust  and 
confidence,  and  upon  this  express  condition,  that  the  said  trustees,  their  execu- 
tors, or  administrators,  shall  and  do  permit  and  suffer  me,  the  said  G.  De  M., 
to  use,  keep  and  enjoy  the  profits  of  the  said  negro  Ben,  during  my  natural 
life,  without  paying  or  yielding  any  for  the  same  or  in  any  respect  thereof. 
Provided  also,  that  if  I  should  remove  the  said  negro  Ben  out  of  my  possession, 
or  the  said  negro  should  be  removed  out  of  my  possession  by  any  means  what- 
soever, then  the  use  reserved  shall  terminate,  and  the  said  trustees,  or  either 
of  them,  shall  take  the  negro  Ben  into  their  possession,  and  apply  the  profits 
arising  from  him  to  the  use  of  my  said  daughter,  until  she  arrives  at  the  age  of 
twentv-oue  years,  or  marries ;  at  which  time  the  said  negro  Ben  to  be  deliv- 
ered up  to  her,  her  heirs,  executors,  administrators,  or  assigns" 

It  was  held,  1.  That  the  true  construction  of  the  deed  was,  that  it  was  a  convey- 
ance to  trustees  for  the  use  of  G.  De  M.  for  life,  with  a  condition  forfeiting  his 
estate  if  he  should  part  with  the  possession  of  the  slave,  or  any  one  should 
take  him  out  of  his  possession  ;  and  in  such  case  the  profits  were  to  be  applied 
to  the  use  and  benefit  of  plaintiff,  until  her  marriage  or  full  age  ;  and  if  G.  De  M. 
should  retain  possession  until  his  death,  then  the  possession  to  be  delivered  to 
plaintiff. 

2.  That  G.  De  Millen  had  a  life-estate  in  said  negro,  which  might  be  the  subject 
of  sale  under  execution. 

3.  That  the  reservation  of  the  use  of  the  chattel  to  the  grantor  for  life  made  the 
whole  deed  fraudulent  and  void  against  creditors. 

Before  0'!Neall,  J.  at  Chester,  Fall  Term,  1836,  whose  report  of  the 

case  is  as  follow  : 

This  was  an  action  of  trover  for  the  recovery  of  the  value  of  a  negro 
*»^fifn  "^'^^  named  Ben,  sold  by  the  sheriff  of  Chester,  as  the  *property 
-I  of  the  plaintiff's  father,  George  De  Millen,  and  purchased  by  the 
defendant.  The  case,  it  seemed  to  me,  depended  upon  the  construction 
of  the  deed  from  De  Millen,  conveying  the  negro  for  the  use  of  his  daugh- 
ter. That  deed  is  as  follows:  "South  Carolina,  Chester  District. 
Know  all  men  by  these  presents,  that  I,  George  De  ]Millen,  of  the  State 
and  district  aforesaid,  in  consideration  of  one  dollar,  and  the  natural  love 
and  affection  which  I  have  and  bear  to  my  daughter  Cornelia  Margaret 
De  Millen,  and  for  and  towards  the  better  support  and  maintenance  of 
lier  hereafter,  and  for  divers  other  good  causes  me  thereunto  moving, 
have  given,  granted,  confirmed  and  sold,  and  by  these  presents  do  give, 
grant,  sell  and  confirm,  unto  the  said  Cornelia  Margaret  De  Millen,  and  to 
her  heirs  forever,  a  negro  man  slave,  named  Ben,  about  thirty-one  years  of 
age  ;  to  have  and  to  hold  the  said  negro  Ben,  hereby  given,  granted,  sold 
and  confirmed,  to  her  and  to  her  executors,  administrators  or  assigns, 
as  hers  and  her  own  ])roper  goods  and  chattels,  from  henceforth  forever  ; 
and  I  do  hereljy  nominate,  constitute  and  appoint  Peter  Goza  and  Marlv 
Goza,  trustees  for  the  better  carrying  into  effect  the  intention  of  this  gift : 
Provideil  always,  nnd  these  presents  are  upon  this  si)ecial  trust  and  con- 
fidence, and  upon  this  express  condition,  that  (he  said  trustees,  their  exe- 
cutors or  adinitiistralors,  shall  and  do  peynnit  ami  suffer  me,  the  said 
George  JJc  Milleyi,  to  use,  keep  and  enjoy  the  2)rofils  of  the  said 
nefjro  lien  duriny  my  natural  life,  ivithout  paying  or  yielding  any  for 


*500]  DE  MiLLEN  VS.  m'alilley. — 1^36.  665 

the  same,  or'  in  any  i^csjject  thereof.  Provided  always,  aUo,  that  if  I 
should  remove  the  said  negro  Ben  out  of  my  possession,  or  the  said 
negro  should  be  removed  out  of  my  possession  by  amy  means  whatso- 
ever, then  the  use  reserved  shall  be  terminated,  and  the  said  trustees, 
or  either,  shall  take  the  negro  Ben  into  their  possession  and  apply 
the  profits  arising  from  him  to  the  use  of  my  said  daughter,  until  she 
arrives  at  the  age  of  twenty-one  years,  or  marries,  at  which  time  the 
said  negro  Ben  to  he  delivered  up  to  her,  her  heirs,  executors,  ad- 
ministrators or  assigns.''  After  heariiii?  the  whole  case,  my  opinion  was 
demanded  upon  the  deed,  whether  the  ])laiutiff  could  recover  ?  And  my 
opinion  being  against  her  upon  it,  a  nonsuit  was  submitted  to  with  leave 
to  set  it  aside.  It  seemed  to  me  that  the  true  construction  of  the  deed 
was,  that  it  was  a  conveyance  to  trustees,  for  the  use  of  George  De  Mil- 
ieu for  life,  with  a  condition  forfeiting  his  estate  if  he  should  part  with 
the  possession  of  the  slave,  or  any  one  should  take  him  out  of  his 
*possession,  and  in  such  a  case  to  apply  the  profits  of  the  labor  of  r^cni 
the  slave  for  the  use  of  the  plaintiff,  until  marriage  or  full  age,  at  '- 
which  time  the  negro  was  to  be  delivered  to  her;  and  if  De  Millen  should 
retain  possession  during  life,  then  at  his  death  possession  was  to  be  deli- 
vered to  the  plaintiff.  To  say  nothing  about  the  manifest  legal  result  of 
the  title  to  the  possession  being  in  the  trustees,  and  not  in  the  plaintiff,  I 
thought,  1st,  that  De  Millen  had  a  life  estate  which  was  liable  to  execu- 
tion, and  which  was  properly  sold  by  the  sheriff;  for  the  proviso  defeat- 
ing that  estate  is  a  plain  fraud  on  creditors.  2d,  that  the  reservation  of 
the  use  in  the  chattel  to  the  grantor  for  life,  made  the  whole  deed  fraudu- 
lent and  void  against  creditors. 

The  plaintiff  appeals,  and  moves  to  set  aside  the  nonsuit,  on  the  annexed 
grounds : 

1.  15eca,nse  llie  deed  under  which  the  plaintiff  claimed,  was  a  good  and  valid 
deed  in  law,  and  the  legal  estate  in  the  negro  vested  in  the  plaintiff,  so  soon  as 
the  deed  was  executed,  and  the  mere  use  of  the  slave  reserved  to  the  donor, 
did  not  vitiate  the  deed. 

2.  Because,  so  soon  as  George  De  Millen  was  deprived  of  the  possession  of  the 
negro,  the  use  reserved  terminated,  and  the  title  of  the  plaintiff  became  perfect. 

3.  Because,  from  the  proof  offered,  the  Court  should  have  sent  the  case  to 
the  jury. 

Curia,  pier  Gantt,  J.  The  report  of  the  presiding  judge  in  this  case 
is  so  full  and  explicit,  and  his  reasoning  so  satisfactory  on  the  law  giving 
construction  to  the  deed,  under  which  the  plaintiff  rests  her  ch\im,  that  it 
is  deemed  unnecessary  to  add  any  thing  further  in  sup]iort  of  the  views 
talien  by  him.  It  is  therefore  adopted  as  the  oi)inion  of  the  Court,  and 
the  !ionsuit  as  ordered  cannot  be  set  aside. 

The  motion  is  therefore  refused. 

KiciiAiiDsoN,  Butler,  Earle  and  Evans,  JJ.,  concurred. 

T.  and  M.  Williams,  for  the  motion.     Gregg  and  McAlilley,  contra. 

See  Supra,  2S1  ;  2  Sp.  Eq.  5S9.     An. 


GQ6  APPENDIX    TO    VOL.    II.  [*502 


*502]  *The  State  vs.  James  Ferguson. 

TThere  the  prisoner  found  a  siim  of  money  on  the  highway,  which  he  soon  after 
converted  to  his  own  use,  with  various  circumstances  of  fraud  and  concealment, 
it  was  Held,  "that  if  the  prisoner,  at  the  time  of  finding  the  pocliet-book,  and 
before  he  removed  the  money,  knew  it  to  he  the  property  of  the  prosecutor," 
the  conversion  under  these  circumstances  would  be  larceny. 

Tried  before  Earle,  J.,  at  Chester,  Fall  Term,  1837,  who  reports  the 
the  facts  as  follows  : 

The  prosecutor,  James  "W.  Key,  on  the  1st  of  Dec,  1836,  lost,  on  the 
highway  leading  by  the  prisoner's  house,  his  pocket-book,  containing 
about  six  hundred  dollars  in  bank  bills.  Searching  for  it  the  next  day, 
he  met  the  prisoner,  and  informed  him  he  had  lost  his  pocket-book  with 
some  little  money  in  it.  On  the  first  Monday  of  December,  a  few  days 
after  the  loss,  it  was  ascertained  that  the  prisoner  had  a  large  sum  of 
money,  and  being  searched,  it  was  found  he  had,  including  the  amount 
passed  oft"  during  the  day,  three  hundred  and  thirty-two  dollars,  which 
was  given  up.  Of  that  amount  a  fifty  dollar  and  a  ten  dollar  bill  were 
positively  identified  by  the  prosecutor,  as  jiart  of  the  money  he  had  lost. 
Before  the  Justice,  on  his  examination,  which  was  regularly  reduced  to 
writing,  the  prisoner  said  that  the  Friday  before,  he  went  out  into  the 
road  near  his  house,  and  found  a  sum  of  money,  rolled  up  in  brown 
paper,  and  tied  wiih  a  string  ;  that  he  did  not  know  how  much  there 
was  ;  that  he  had  kept  it  until  that  day ;  that  he  had  spent  a  considerable 
part  to  difterent  persons  in  the  village,  and  that  was  the  balance  which 
was  found  on  him.  When  the  money  was  first  found  on  him,  and  claimed 
as  Key's,  prisoner  said,  "  No,  it  is  money  I  have  been  laying  up  for 
years."  When  asked  if  he  had  not  passed  a  fifty  dollar  bill  to  McKee, 
he  replied,  no,  I  have  not.  Being  taken  to  McKee's  the  bill  was  de- 
livered up  which  he  had  passed,  and  which  the  prosecutor  identified  as 
one  of  his.  On  the  way  to  McKee's  the  prisoner  took  Key  on  one  side, 
and  said,  I  want  to  make  it  up  with  you.  Key  said,  I  want  my  money. 
Prisoner  asked,  how  much  do  you  lack  ?  and  added,  he  did  not  like  to 
be  carried  into  the  store  before  all  the  i)eople.  The  inducement  which 
was  supposed  to  make  any  statement  of  the  prisoner  inadmissible,  was 
this  ;  after  they  left  McKee's  store,  and  before  he  was  carried  to  the  Jus- 
tice's, John  A.  Bradley  said  to  the  prisoner,  it  was  his  o[)inion  that  Key 
*503"1  ^'^"^^  show  him  all  the  *indulgence  in  his  power,  if  he  would 
come  out,  and  say  where  the  rest  of  the  money  was.  What  tlie 
prisoner  said  to  iSIr.  Bradley  then,  was  excluded.  But  I  did  not  con- 
sider so  slight  a  circumstance  enough  to  exclude  his  statement  before  the 
Justice,  on  his  examination  officially  taken,  that  he  had  found  the  money. 
He  did  not  disclose  where  the  balance  was.  The  jjrisoner's  house  is  the 
only  one  Ijetween  the  residence  of  the  prosecutor,  Key,  and  that  of  his 
father,  where  ho  went  the  evening  he  lost  the  ])ocket-book,  and  where  he 
mi.ssed  it.  The  name  of  the  prosecutor  was  written  in  the  pocket-book. 
There  was  no  room  to  doubt  that  the  jirisoner  found  the  i)rosecutor's 
money,  and  the  only  defence  seriously  urged  was  that  larceny  could  not 
be  committed  of  money  found  on  the  highway.  If  I  had  charged  the 
jury  as  stated  iu  the  3d  ground,  that  they  must  find  a  fact  which  was 


*503]  STATE    VS.    FERGUSON. 1837.  G67 

pliysically  impossible,  else  they  must  acquit  the  prisoner,  it  would  have 
beea  morally  impossible  for  them  to  find  him  {guilty.  I  instructed 
the  jury,  if  the  ))risoner,  at  the  time  of  finding  the  pocket-book,  and 
before  he  removed  the  money,  ?'.  e.  before  he  himself  removed,  carrying 
it  with  him,  knew  it  to  be  the  property  of  the  prosecutor ;  or  not  krwvving 
it  to  be  the  property  of  the  prosecutor,  if  at  the  time  of  removing  the 
money  he  did  it  with  the  intention  to  convert  it  to  his  own  use,  it  was 
larceny. 

The  jury  found  the  prisoner  guilty. 

GROUNDS    OF   APPEAL. 

7/j  arrest  of  judgment: 

Because  the  indictment  does  not  charge  that  the  prisoner,  at  the  time  of 
finding  the  money  on  the  highway,  then  knew  the  same  to  be  the  property  of 
J.  AV.  Key,  the  prosecutor. 

And  for  a  new  trial. 

1.  Because  larceny  cannot  be  committed  by  a  finder,  in  taking  up  bank  bills 
found  on  the  highway. 

2.  Because  the  confessions  of  the  prisoner,  made  after  promises  of  favor 
made  to  bim  by  John  A.  Bradley  and  others,  were  admitted  in  evidence.  See 
Bradley  and  Gooche's  testimony,  which  show  the  promises  were  made  before 
confessions  proven  by  Key  and  Wood. 

3.  Because  there  is  error  in  the  finding  of  the  jurj',  as  the  Court  charged  the 
jury,  that  they  must  find  that  the  prisoner,  at  the  very  instant  he  took  up  the 
money  on  the  high  road,  knew  the  same  to  be  the  property  of  the  prosecutor, 
or  they  must  acquit  *the  prisoner, — which  knowledge,  from  the  evidence  r*^A_i 
was  physically  impossible.  '• 

4.  Because  the  verdict  is  not  only  without  but  against  the  evidence,  the  law, 
and  the  charge  of  the  Court. 

Curia,  per  Earle,  J.  The  prisoner  found  a  sum  of  money  on  the 
highway,  which  he  soon  after  converted  to  his  own  use,  with  various  cir- 
cumstances of  falsehood  and  concealment.  On  his  trial  for  larceny,  the 
Judge  instructed  the  jury  "  if  the  prisoner,  at  the  time  of  finding  the  pocket- 
book,  and  before  he  removed  the  money,  knew  it  to  be  the  property  of 
the  prosecutor  ;  or  not  knowing  it  to  be  the  property  of  the  prosecutor, 
if,  at  the  time  of  removing  the  money,  he  did  it  with  the  intent  to  con- 
vert it  to  his  own  use,  it  was  larceny."  It  is  on  the  latter  paragraph  of 
this  instruction  that  the  doubt  of  the  Court  arises.  Of  the  correct- 
ness of  the  first  part  of  the  instruction,  no  question  exists  in  the  mind  of 
the  Court.  And  if  the  same  verdict  had  been  found  on  that  alone,  the 
Court  might  have  been  entirely  satisfied  with  it.  On  the  other  branch  of 
the  instruction,  the  Court  is  divided  ;  on  that  point  no  opinion  is  ex- 
pressed. But  as  it  is  possible  the  verdict  may  have  been  influenced,  in 
some  degree,  by  that  instruction,  the  Court  is  unwilling  that  the  defend- 
ant should  suffer  on  a  verdict,  when  the  law  is  at  all  doubtful. 

A  new  trial  is  therefore  ordered,  without  prejudice. 

Gantt,  Richardson,  O'Neall  and  Butler,  JJ.,  concurred. 
See  Supra,  382;  5  Rich.  241 ;  2  N.  &  McC.  90.     An. 


668  APPENDIX    TO   VOL.    II.  [*505 


*505]  *Bright  Williamson  vs.  James  King,  Adm'r.  op  Bacot. 

1.  Where  a  demand  is  barred  by  the  Statute  of  Limitations,  nothing  less  than  a 
direct  promise  to  pay,  and  an  acknowledgment  of  a  subsisting  debt,  due  and 
owing,  and  which  the  party  is  willing  to  pay,  will  take  the  case  out  of  the  bar  of 
the  statute. 

2.  The  promise  must  be  so  explicit,  that  the  extent  of  the  party's  liability  will 
appear  by  the  terms  of  the  assumption. 

Before  Evans,  J.,  at  Darlington,  Fall  Term,  1836.     . 

This  was  an  action  of  assumpsit  on  four  notes,  and  a  due  bill,  viz.  : 

1st.  Note  dated  6tli  May,  1812,  for  £115  4s.  8d.,  with  a  credit  en- 
dorsed of  $500  in  January,  1817  ;  payable  to  plaintiff. 

:2d.  Note  dated  7th  July,  1819,  for  $875  14,  payable  to  Williamson  & 
Prince. 

3d.   Due  bill  20th  .January,  1819,  for  $2  10. 

4th.  Note  dated  23d  January',  1821,  for$43G  32,  with  credits  endorsed 
for  S278  67,  the  last  of  which  is  27th  April,  1822.  This  note  is  payable 
to  Williamson  &  Lide  or  bearer. 

5th.  Note  dated  3d  February  1821,  for  $457  16i 

The  amount  due  on  these  various  demands,  with  interest,  is  now  up- 
wards of  $3500.  The  defendant  pleaded  the  Statute  of  Limitations. 
Bacot  died  in  October,  1833,  and  this  action  was  brought  at  Fall  Term, 
1835.  Bacot  had  been  Sheriff  of  Darlington  from  1821  to  1825,  and 
there  were,  as  was  said,  unsettled  demands  between  the  parties  in  mat- 
ters appertaining  to  that  office.  To  rebut  the  plea  of  the  Statute  of 
Limitations,  the  plaintiff  offer  the  following  evidence  : 

Peter  C.  CoggeshaU. — Within  three  years  before  Bacot's  death,  he  heard  a 
conversation  between  Williamson  and  Bacot ;  Williamson's  object  seemed  to  be 
to  avoid  the  Statute  of  Limitations  ;  plaintiff  said,  we  have  not  settled  for  a  long 
time,  and  proposed  fixing  a  day  for  settlement :  Bacot  said  it  made  no  difference 
about  fixing  a  day ;  Williamson  said,  let  us  say  before  these  gentlemen  that 
nothing  between  us  shall  go  out  of  date  ;  Bacot  hesitated  and  said  he  had  never 
pleaded  anything  out  of  date ;  Williamson  replied,  in  case  of  our  death  let  us 
prevent  our  representatives  from  doing  it ;  Bacot  reluctantly  assented,  but  the 
witness  did  not  remember  the  words  he  used.  The  conversation  related  to  all 
transactions  between  them,  whether  of  the  sheriff's  office  or  in  any  way  in  which 
*50G1  ^'"icbtedness  could  arise,  *])at  neither  these  nor  any  other  specific  debts 
were  mentioned ;  Thomas  Williamson  and  Wingate  were  present. 

Thomas  Williamson. — Heard  the  plaintiff  frequently  propose  a  settlement ; 
remembers  that  in  the  old  Court  House  heard  plaintiff  speaking  to  Bacot  about 
a  settl(!iiient ;  Bacot  said  it  made  no  difference,  as  nothing  between  them  should 
go  cut  of  date.     This  was  one,  two  or  three  years  before  Bacot's  death. 

The  Court  said  in  charging  the  jury,  "  In  charging  the  jury  I  laid  down 
the  rule  in  conformity  with  Young  vs.  Montpeoy,  Bail.  Hep.  that  there 
must  \)Q,  a  promise  to  pay,  or  a  clear  admission  that  money  was  due, 
from  which  a  ])romiso  to  pay  would  arise.  I  advised  them  that,  accord- 
ing to  my  undcrstaniliiig  of  the  rule,  a  promise  generally  not  to  plead 
the  Statute,  without  reference  to  the  demand  sued  for,  was  neither  an 
e.xpress  or  implied  promise  to  pay  the  debt  for  which  the  action  was 
brought ;  and  they  found,  in  conformity  with  my  opinion,  for  the 
defendant."     The  notice  of  appeal  is  annexed. 


*506]         WILLIAMSON  VS.  KING,  adm'r. — 1836.  669 

Grounds  for  neiv  trial: 

1.  That  the  promise  of  the  defendant's  intestate  not  to  plead  the  Statute  of 
Limitations  to  plaintiff's  demands,  was  sufficiently  proved,  and  as  proved  was 
sufficient  to  entitle  the  plaintiff  to  recover. 

2.  That  there  was  error  in  the  charge  of  the  presiding  Judge,  that  a  mutual 
promise  between  the  plaintiff  and  defendant's  intestate  not  to  plead  the  Statute 
of  Limitations  to  any  demands  subsisting  between  them  at  the  time,  was  not 
sufficient  to  take  the  case  from  under  the  operation  of  the  Statute  of  Limita- 
tions, unless  there  was  in  such  stipulation  express  reference  to  the  particular 
demand  or  debt  intended  to  be  revived. 

Curia,  per  Butler,  J.  The  plaintiff's  motion  in  this  case,  must  be 
refused,  on  the  authority  of  Young  vs.  3Iovtpeoxj,  reported  in  2  Bailey. 
At  the  time  the  defendant's  intestate  had  the  conversation  with  plaintiff, 
some  years  before  his  death,  he  was  under  no  legal  obligation  to  pay  any 
of  the  demands  which  the  plaintiff  has  asserted  in  this  action  ;  they 
were,  then,  not  subsistinj^  demands,  being  barred  by  the  Statute.  The 
intestate  Bacot  might,  however,  have  restored  the  demands  and  have 
subjected  *himself  to  a  legal  liability  to  pay  them,  if  they  had  not  r^cAy 
been  settled.  ^ 

Nothing  less  than  a  direct  promise  to  pay,  or  unequivocal  acknowledg- 
ment of  some  specific  demand  or  demands,  would  have  subjected  him  to 
such  liability.  The  promise  must  have  been  so  explicit  that  his  liability 
could  have  been  made  to  appear  by  stating  the  terms  of  the  understand- 
ing in  a  declaration,  reference  being  had  to  the  old  demand  for  a  con- 
sideration ;  that  is,  the  extent  of  the  liability  must  appear  in  the  terms 
of  the  assumption.  If  one  were  to  say,  I  will  not  plead  the  Statute,  to 
a  specific  promissory  note,  or  account,  or  bond,  the  liability  to  pay  might 
be  so  distinctly  admitted  and  implied  that  the  party  could  not  avoid  it : 
but  the  extent  of  the  liability  would  also  appear  at  the  same  time.  But 
where  there  is  no  specific  demand  mentioned  or  referred  to,  how  can  this 
appear  ?  Bacot  might  have  contested  the  original  validity  of  some  of 
the  demands,  if  they  had  been  mentioned  ;  others  he  might  have  said 
were  paid.  To  have  resuscitated  an  extinguished  demand,  he  must  have 
acknowledged  it  to  be  unsatisfied  at  the  time  he  had  the  conversation ; 
which  he  did  not.  The  case  quoted  by  plaintiff  from  8  Durn.  &  Ea. 
181,  will  not  sustain  him.  A  credit  was  given  on  an  account,  by  the 
consent  of  the  party  to  be  affected  by  it,  within  six  years  ;  Lord  Kenyon 
held  that  it  amounted  to  an  implied  promise  to  pay  the  balance.  But 
here  there  was  a  specific  demand  referred  to,  and  the  credit  was  made 
before  the  statutory  bar  had  run.  If  the  credit  had  been  made  after  the 
expiration  of  the  six  years,  there  might  have  been  something  in  the  case. 
The  motion  for  a  new  trial  is  I'efused. 

Evans,  Earle,  Gantt,  and  Richardsox,   JJ  ,  concurred. 

Dargan,  for  the  motion.    Wllkins,  contra. 

See  6  Rich.  122.     An. 


670  APPENDIX   TO   YOL.    II.  [*508 


*508]  *Let\t[s  Moultrie  vs.  Robert  Jennings. 

It  is  noTV  the  settled  law  of  the  land,  that  a  voluntary  conveyance  of  a  personal 
chattel,  is  good  against  a  subsequent  purchaser  with  notice,  where  there  is  no 
fraud  in  the  gift. 

2.  The  Act  of  the  Legislature  passed  in  1832,  on  the  subject  of  parol  gifts,  was 
never  intended  to  do  more  than  prescribe  a  rule  to  govern  future  cases.  Its 
application  could  not  extend  to  gifts  created  before  its  passage. 

Before  O'Xeall,  J.,  at  Edgefield,  Spring  Term,  1837. 

This  was  an  action  of  trover,  to  recover  the  value  of  a  negro  woman, 
Jinsey,  and  her  two  children. 

The  right  of  the  plaintiff  to  recover,  depended  upon  a  parol  gift.  The 
plaintiff  was  the  youngest  son  of  Lewis  Moultrie,  deceased,  who  was  the 
stepson  of  Ebenezer  Hill,  who  had  no  children.  It  was  proved  that  Mr. 
Hill  was  much  attached  to  his  stepson.  When  the  plaintiff  was  quite 
an  infant,  not  more  than  two  or  three  years  old,  in  the  year  1817,  he  was 
left  with  his  grandmother  and  grandstepfather  for  a  short  time.  On  his 
mother's  coming  for  him,  Mr.  Hill  asked  her,  after  some  time,  if  Lewis 
had  told  her  that  he  had  given  him  a  negro  ?  She  said,  no.  He  said 
he  had  given  one  to  her  daughter,  Sally,  who  was  named  after  his  wife, 
and  that  he  had  also  given  Jinsey  to  Lewis,  who  was  named  after  his 
father,  who  had  helped  him  to  work  for  his  property,  and  that  he  intended 
to  make  the  other  children  of  Lewis  Moultrie,  deceased,  equal  to  these 
two,  by  will.  In  the  frequent  visits  of  the  ]ilaintiff  and  his  mother  to 
Mr.  and  Mrs.  Hill,  Mr.  Hill  would  tell  the  plaintiff's  mother  that 
"  Lewis's  negro  outgrew  Sally's"  and  on  some  of  these  occasions,  he 
would  make  Lewis  bring  in  the  negro  child,  Jinsey,  to  show  her  to  his 
mother.  To  other  witnesses,  from  ]823  to  1825,  he  said  that  he  "  had 
given''^  the  negro,  Jinsey,  to  Lewis  Moultrie,  the  plaintiff;  and  it  was 
always  understood  by  one  of  the  witnesses,  that  she  belonged  to  the 
plaintiff.  Subsequent  to  these  declarations  of  Mr.  Hill,  on  the  20th  of 
January,  1829,  he  sold  the  negro,  Jinsey,  to  the  defendant ;  but  accord- 
ing to  the  testimony  of  Seato)i  Moultrie,  when  the  defendant  first  pro- 
posed to  buy  Jinsey,  Mr,  Hill  told  him  that  he  had  given  her  to  the 
plaintiff.  On  the  day  on  which  the  defendant  bought  Jinsey,  a  will,  by 
which  Hill  had  bequeathed  her  to  the  plaintiff,  was  burned  ;  and  after  it 
was  burned  in  his  presence,  the  defendant  asked  if  there  was  any  thing 
else  against  the  negro,  beyond  Lewis  Moultrie's  claim. 
*5091  ""There  was  no  other  evidence  in  the  cause  which  is  necessary 
-^  to  be  reported. 

The  defendant  rested  his  defence  upon  the  grounds,  1st.  That  there  was 
no  ])arol  gift.  2.  If  there  was,  that  he  was  a  purchaser,  for  favorable 
consideration,  without  notice.  3.  If  he  had  notice,  still  as  a  purchaser 
for  vahiable  consideration,  his  title  was  good  against  the  plaintiff,  a  mere 
volunteer.  4th.  That  the  Act  of  1832  made  the  gift  void.  On  the  first 
ground  the  presiding  Judge  thus  instructed  the  jury, — "  That  to  make  a 
good  and  legal  gift,  there  must  be  a  delivery,  or  that  which  is  equivalent. 
(Falford  vs.  Lamar,  last  July  Session.)  I  told  them  that  a  delivery 
might  be  presumed  from  the  words,  "had  given."  That  it  was  a  mere 
question  of  fact,  on  which  they  had  the  right  to  decide.     On  the  2d  and 


*509]  MOULTRIE   VS.    JENNINGS.  671 

3d,  I  said  to  the  jury,  that  if  tlie  defendant  was  a  purchaser  for  valuable 
consideration,  without  notice,  that  his  title  was  in  law  to  be  preferred  to 
that  of  the  plaintiff.  But  if  they  were  satisfied  that  he  had  notice  of  the 
j>laintilT's  claim,  then  that  his  title  would  be  defeated  by  the  previous  gift. 
On  the  4th,  I  said  to  the  jury,  that  the  Act  of  1832  must  have  a  pros- 
pective operation  and  effect;  that  it  could  not  defeat  the  plaintiff's  title, 
which  was  perfect  before  its  passage.  The  jury  found  for  the  plaintiff 
$1,500,  and  1  was  entirely  satisfied  of  the  correctness  of  the  verdict. 
The  defendant  appeals. 

[No  grounds  of  appeal  appear  ever  to  have  been  filed  with  the  record  of  this 
case  ;  of  course  none  can  he  given  here.  The  grounds  of  appeal  may  he  antici- 
X)ated,  however,  from  the  report  aud  the  opinion  of  the  Court. — Rep.] 

Curia,  per  Evans,  J.  Upon  the  1st  and  3d  grounds,  it  is  sufficient 
to  say,  that  they  were  facts  which  the  jury  have  decided  to  the  satisfac- 
tion of  both  the  presiding  Judge  and  of  this  Court.  In  relation  to  the 
2d  ground,  I  think  it  unnecessary  to  say  more  than  that  since  the  case  of 
JIudnal  vs.  Wilder,  4  McC.  305,  it  has  been  considered  as  the  settled 
law,  that  a  voluntary  conveyance  is  good  against  a  subsequent  purchaser, 
with  notice.  Such  conveyances  have  been  set  aside  in  favor  of  subsequent 
purchasers  and  creditors,  on  the  ground  of  fraud;  but  it  would  be  absurd 
to  say  that  a  purchaser  was  defrauded  by  what  he  had  notice  of,  at  the 
time  he  paid  his  money.  The  4th  and  last  ground  *iiisists  that  ^:^-1/^ 
the  Act  of  1832,(«)  on  the  subject  of  parol  gifts,  is  a  legislative  '- 
interpretation  of  the  law  on  that  subject,  and  should  govern  the  case, 
although  the  gift  was  made  many  years  before  the  passage  of  the  Act. 
How  far  the  power  of  the  Legislative  department  of  this  government  can 
interfere  with  vested  rights  by  declaratory  laws,  is  a  grave  question,  but 
one  which  will  be  decided  promptly  whenever  it  arises.  AVe  think  it 
very  clear  that  that  part  of  the  Act  which  relates  to  this  case,  was  never 
intended  to  do  more  than  to  prescribe  a  rule  to  govern  future  cases ;  and 
it  would  be  as  improper  as  it  is  unnecessary  to  express  any  opinion  on  the 
subject. 

The  motion  for  a  new  trial  is  refused, 

Gantt,  Earle,  Richardson  and  Butler,  JJ.,  concurred. 
Bauskett  and  Wardlaw,  for  the  motion.     Griffin  and  Pope,  contra, 
(a)  6  Stat.  483,  §  2.     An. 


672  APPENDIX    TO   VOL.    II.  [*510 


The  Teeasurers  vs.  "W.  K.  Clowney,  (Com'r  in  Equity.) 

Where  a  commissioner  iu  equity  (upon  the  filing  of  a  hill  for  injunction  in  his 
office)  granted  an  order,  that  a  writ  of  injunction  should  issue,  upon  the  party's 
complying  with  the  rule,  hy  gi\ing  bond  and  approved  security — and  afterwards 
took  a  blank  bond,  or  one  that  was  informal,  and  informed  the  defendants  to 
the  equity  proceedings,  that  he  had  taken  a  bond — whereupon,  they  were 
deceived  as  to  its  informality,  and  were  never  undeceived,  until  upon  a  trial  at 
law  upon  said  bond,  they  found  it  had  been  taken  blank,  and  was  therefore 
void.  It  was  held,  that  the  commissioner  was  liable  upon  his  official  bond,  to 
the  parties  restrained  and  enjoined  by  his  order,  for  the  amount  of  the  damages 
which  they  sustained,  by  reason  of  his  laches  and  neglect. 

[It  is  a  contempt  of  the  Court  of  Equity,  for  a  plaintiflf  at  law  whose  process 
has  been  enjoined,  to  proceed  thereon,  after  the  order  for  injunction  and  before 
the  writ  of  injunction,  if  he  has  notice  of  the  order.     An.'\ 

Before  O'Neall,  J.,  at  Union,  Fall  Term,  1836. 

This  was  an  action  on  the  official  bond  of  the  defendant  as  Commis- 
sioner in  Equity,  for  not  taking  bond  from  the  complainant  in  Equity,  in 
a  bill  for  an  injunction.  It  appeared  that  several  of  the  creditors  of  the 
late  Mr.  O'Kiefe,  having  recovered  judgments  against  his  administrator, 
which  were  unpaid,  instituted  such  subsequent  proceedings  as  enabled 
^p.,,-]  them  to  recover  a  *judgment  for  the  respective  amounts  due  to 
-'  them,  in  the  name  of  the  Ordinary  vs.  The  Admi7ri>ifrator,  3Irs. 
O^Kiefe  and  her  securities;  upon  this  judgment,  execution  was  issued  and 
lodged  in  the  sheriff's  office.  A  bill  in  Equity  was  filed  by  Mrs.  O'Kiefe 
and  her  sureties,  praying  an  injunction.  The  commissioner  granted  the 
prayer,  and  ordered  that  the  judgment  be  enjoined,  on  the  parties  enter- 
ing into  bond  and  security  to  perform  the  decree  of  the  Court.  No  writ 
of  injunction  luas  issued.  The  sheriff  entered  in  his  books  that  "the 
proceedings  were  stayed,  on  account  of  an  application  for  an  injunction." 
It  appeared  that  the  commissioner,  intending  to  take  a  bond  from  the 
complainants  under  his  order,  permitted  them  to  sign  and  seal  a  blank 
paper.  The  bill  progressed  to  trial,  and  on  demurrer  was  dismissed  with 
costs.  The  paper  signed  and  sealed  as  a  bond  was  properly  filled  up, 
subsequent  to  the  signing  and  sealing;  and  after  the  decree,  an  action 
was  brought  upon  it,  and  it  was  adjudged  to  be  void,  and  the  plaintiff 
was  nonsuited.  It  appeared  on  this  trial,  that  neither  the  plaintiffs  at 
law,  nor  their  counsel,  Col.  Ilerndon,  knew  that  the  bond  was  executed 
blank.  On  inquiring  of  the  commissioner,  (the  defendant,)  Col.  Hern- 
don  was  informed  that  a  bond  had  been  given.  O'lviefc's  estate  was 
insolvent,  but  the  securities  of  the  administrator  were  good.  The  de- 
fendant told  Col.  Ilerndon,  at  some  time  during  the  proceedings  had 
on  the  blank  bond,  that  the  persons  executing  it,  agreed  to  take  no 
advantage  of  the  fact,  that  it  was  blank.  The  case  now  made,  it  seemed 
to  me,  did  not  materially  vary  from  that  before  the  Court  of  Appeals,(a) 
when  a  new  trial  was  ordered.  I  therefore  said  to  the  plaintiff's  attorney, 
that  I  thought  he  could  not  recover,  lie  submitted  to  a  nonsuit,  with 
leave  to  nKjvc  the  Court  of  Appeals  to  set  it  aside;  which  he  now  does, 
on  the  grounds  annexed. 

(«)  Infra,  516.     An. 


*511J  TREASURERS   VS.    CLOWN EY. 1836.  673 

GROUNDS    OF    APPEAL. 

1.  Because,  the  Court  erred  in  decidinof  lliat  it  was  necessary  tliat  a  writ  of 
injunction  should  actually  issue  to  make  the  defendant  liable. 

2.  Because,  in  this  case,  the  givin;^  of  the  lilanlc  bond  and  notice  to  the 
plaintill's,  or  their  attorney  at  law,  that  a  good  bond  was  given,  was  sufficient, 
without  a  writ  of  injunction  issued,  to  make  the  defendant  liable 

3.  Because  the  complainant  took  a  bond  he  knew  to  be  void,  ''and  of  r*-|9 
which  the  plaintiffs  at  law,  or  their  attorney,  had  no  notice  was  taken  L 
blank,  until  the  trial  at  law  on  the  bond. 

4.  Because  the  decision  of  the  Court,  upon  the  case  made,  was  erroneous, 
and  the  nonsuit  ought  to  be  set  aside. 

Curia,  per  Earle,  J.  This  cause  comes  up  a  second  time  before 
this  Court  on  a  motion  to  set  aside  a  nonsuit,  ordered  by  his  Honor 
who  presided  in  the  Court  below,  who  conceived  that  the  case  made  on 
the  last  trial,  did  not  materially  differ  from  that  made  on  the  first.  This 
Court  has  come  to  a  different  conclusion  ;  and  in  pronouncing  their 
judgment,  setting  aside  the  nonsuit,  it  is  necessary  to  consider  the 
grounds  of  the  former  judgment,  in  connection  "with  the  prominent  facts 
proved  then,  and  now  in  order  to  show  that  the  material  facts,  on  which 
the  opinion  of  the  Court  is  now  formed,  were  not  in  proof  on  the  former 
occasion.  This  Court  is  too  sensible  of  the  importance  of  stability  and 
uniformity  injudicial  decisions,  to  depart  from  those  which  have  already 
been  pronounced  by  their  predecessors  ;  and  we  should  not  hesitate  to 
sustain  the  nonsuit  ordered  below,  however  great  the  hardship  which 
the  plaintiffs  w^ould  suffer,  if  we  did  not  perceive,  to  our  entire  satis- 
faction, that  the  plaintiffs  may  have  justice,  without  overturning  the 
former  decision.  And  first,  I  think  it  obvious  enough,  from  the  terras 
nsed  by  Chancellor  Harper,  in  delivering  the  opinion  of  the  Court,  that 
he  had  not  before  him  the  original  order  of  the  commissioner,  enjoining 
the  plaintiffs.  He  defines  the  writ  of  injunction,  and  the  service,  and 
proceeds,  "  the  order  of  a  Chancellor  for  the  granting  of  an  injunction  is 
not  certainly,  of  itself,  an  injunction  ;  nor  does  it  restrain  the  party,  unless 
the  conditions  upon  which  it  was  granted  shall  have  been  complied  with 
and  the  party  notified  that  they  have  been  complied  with,  by  being 
served  with  a  writ."  Tlie  Act  of  1825(a)  extends  to  the  master  and  com- 
missioners in  Equity  the  power  to  grant  injunctions,  which  shall  continue 
in  force  until  the  answer  is  filed,  "  in  the  same  manner  as  the  Chancellors 
are  now  authorized  to  do."  The  order  granted  by  the  commissioner  is 
in  these  words.  "  On  hearing  this  bill  read,  and  counsel  on  the  part  of 
the  complainants,  it  is  ordered  that  the  sheriff,  John  Anderson,  and  the 
judgment  creditors,  be  restrained  from  further  proceedings  at  law,  on 
the  executions  within  complained  of,  until  a  dissolution  of  this  injunction 
on  proper  application  made  to  a  Chancellor,  on  the  complainants  giving 
*bond  and  approved  security,"  dated  June  2.9th,  1827.  It  will  [-*ciq 
also  be  borne  in  mind,  that  by  the  Act  of  1784,(/>)  notice  of  the  •- 
application  was  required  to  the  ])laintiffs  at  law.  This  must  be  pre- 
sumed to  have  been  given  ;  as  also,  notice  to  the  sheriff,  who  by  law  was 
compelled  to  stay  proceedings  ;  and  it  now  appears  that  he  made  such 
entry  on  his  books.  From  this  statement  it  will  be  perceived,  that  the 
order  was  not  that  a  writ  of  injunction  should  issue  ;  but  an  order  that 

(«)  7  Stat.  330,  §  10.     An.  (l>)  7  Stat.  209,  I  9.     An. 

Vol.  I. —44 


67i  APPENDIX   TO   VOL.   II.  [*513 

neither  the  sheriff  nor  the  plaintiffs  should  proceed,  but  be  restrained 
therefrom,  on  complainants  giving  bond.  Both  having  received  notice 
of  the  application,  the  presumption  is  that  they  were  present  when  the 
order  was  granted.  As  they  did  refrain  from  proceeding,  the  presump- 
tion is  that  they  did  so  out  of  respect  for  an  order  emanating  from  a 
competent  officer.  But  I  would  not  put  the  case  on  that  ground,  seeing 
there  is  ranch  stronger.  The  bond  was  pretended  to  have  been  executed 
on  the  2d  July,  1827,  the  third  day  after  the  order.  It  had  the  sem- 
blance of  being  a  good  bond  ;  it  was  filed  in  the  proper  office  ;  taken 
by  the  commissioner,  and  in  pursuance  of  the  order,  who  made  the  order  ; 
and  the  important  facts  are  now  in  evidence,  which  were  not  proved 
before,  that  the  plaintiffs  immediately  afterwards,  on  inquiry  of  the  com- 
missioner, were  informed  by  him  that  the  bond  had  been  given  ;  and 
that  they  never  were  apprised  of  the  bond  being  void,  until  the  trial  of  the 
action  at  law,  which  they  subsequently  instituted  upon  it.  These  facts, 
I  conceive,  present  a  case  materially  different  from  the  former  one.  And 
the  case  now  comes  to  this — were  the  plaintiffs  at  law,  according  to  the 
rules  and  practice  of  the  Court  of  Chancery,  liable  to  contempt  if  they 
had  proceeded  at  law,  after  such  notice  as  they  had  received  ? — admitting 
for  the  present  that  their  right  to  recover  here,  depends  upon  that  test ; 
for  it  has  been  put  upon  that  ground  by  Chancellor  Harper.  The  cases 
from  3  Atk.  564  and  567,  are  very  much  to  the  point,  especially  the  last, 
where  a  plaintiff  at  law  was  held  in  contempt,  who  had  proceeded  after 
an  injunction  granted,  although  the  writ  had  not  issued.  But  there  are 
later  cases.  In  0,-^borne  vs.  Tenant,  14  Ves.  136,  a  motion  was  made 
to  commit  the  defendant  and  his  attorney,  for  a  breach  of  injunction  to 
restrain  execution  under  a  judgment.  The  affidavit  in  support  of  the 
motion,  stated  that  the  defendant  and  his  attorney  were  in  Court  when 
the  motion  was  made ;  theirs  stated  that  they  did  not  hear  the  order. 
^.r-\Ai  Lord  Eldon  said,  "if  these  parties  by  their  attendance  *in  Court 
"^  -^  were  apprised  that  there  was  an  order,  that  is  sufficient ;  and  I 
cannot  attend  to  a  distinction  so  thin,  as  that  persons  standing  here, 
until  the  moment  the  chancellor  is  about  to  pronounce  the  order,  which 
from  all  that  passed,  they  must  know  Avill  be  pronounced,  can  by  getting 
out  of  the  way  at  that  instant,  avoid  all  the  consequences.  Javies  ys. 
Downs,  18  Ves.  521,  is  to  the  same  point.  These  were  cases  of  injunc- 
tions to  stay  proceedings  at  law.  The  same  point  has  been  ruled  in 
relation  to  other  special  injunctions,  in  Kempton  vs.  Eve,  2  V.  &  B. 
348,  and  Vasa7i(hm  vs  Hose,  2  J.  &  "W.  264.  Let  it  be  conceded  that 
these  cases  apply  only  to  an  attempted  evasion  of  the  order,  witliout 
allowing  time  for  the  condition  to  be  complied  with,  and  the  writ  to 
issue,  and  that  they  do  not  reach  so  far  as  an  indefinite  delay,  as  is 
clearly  intimated  in  James  vs.  Doivnes  ;  yet  the  case  is  presented  in  a 
different  aspect,  when  we  consider  that  the  plaintiffs  were  officially  in- 
formed, in  answer  to  any  inquiry,  that  the  condition  had  been  complied 
with,  and  the  bond  given.  AVithout  inquiring  further  into  the  effect  of 
the  terms  of  the  order,  tliat  the  plaintiff  be  restrained  eo  inslante,  for 
that  depends  on  Equity  practice,  with  which  we  are  not  familiar, 
(although  we  are  informed  Ijy  a  learned  Chancellor,  that  it  is  not  usual 
to  issue  writs  in  form,  and  tliat  the  order  and  bond  are  considered 
as  restraining  the  party,  who  would  be  regarded  in  contempt  if  he  pro- 


*514]       TREASURERS  VS.    CLOWNET. 1836.         675 

ceetled,)  I  put  the  case  on  tlie  ground,  that  the  complainants  in  Equity, 
having  complied  with  the  condition  and  given  bond,  were  entitled  to  the 
writ  of  injunction,  which  might  have  issued   at  any  moment.     At  that 
instant,  the  plaintifls  at  law  being  informed  of  this  fact  altogether  refrain 
from  further  proceeding  at  law,  and  plead  to  the  bill  in  Equity  for  in- 
junction,  and   proceed  to  trial  there,    with  the  knowlege  of  the  com- 
missioner, and,  as  he  knew  in  consequence  of  his  information.  Supposing 
then  the  bond  to  have  been  good,  could  the  plaiutiCf  at  law  afterwards 
say,  that  as  no  writ  had  issued,  he  would  proceed  at  law  ?     I  apprehend 
not.     It  would  be  just  as  if  a  defendant  at  law  should  move  to  set  aside 
the  service   of  a   writ,  which  he  had  verbally  accepted   or  agreed  to 
waive,  after  pleading  to  the  declaration.     The  plaintiffs  had  waived  the 
issuing  of  the  writ.     They  had  afforded  the  complainants  in  Equity  the 
full  benefit  of  their  injunction,  under  the  belief  induced  by  them,  and 
by  the   commissioner,   that   every  thing  had   been   done   necessary  to 
entitle  them  to  the  writ.     For  the  cause  went  on  to  final  hearing  on 
*the  bill.     In  that  state  of  the  case,  supposing  the  bond  to  have  rn;;^!-- 
becn  duly  executed,  and  an  action  Ijrought  on  it,  would  it  have  L 
availed  the  complainants  in  Equity,  defendants  at  law,  to  plead  in  bar, 
that  in  fact  no  writ  ever  issued,  and  therefore,  the  plaintiffs  were  noi 
actually  enjoined  ?     To  state  the  proposition  is  enough  to  refute  it. 
They  would  have  been  estopped  from  denying  that  a  writ  had  issued, 
after  having  the  full  benefit  of  it.     The  answer  to  that  inquiry,  I  am 
disposed  to  regard  as  the  true  test  of  the  defendant's  liability  in  this 
action.     If  I  have  succeeded  in  showing  that  the  plaintiffs  would  have 
been  in  contempt  if  they  had  proceeded  at  law,  after  waiving  the  writ 
and  pleading  to  the  bill,  it  would  seem  to  be  clear,  and  for  a  stronger 
reason  that  the  complainants  in  Equity  would  be  liable,  on  their  bond, 
after  failing  in  their  bill.     Here  I  will  refer  again  to  the  opinion  of  the 
Court,  on  the  former  hearing,  to  show  that  their  judgment  w'as  based  on 
a  su|)posed  state  of  facts  disproved  by  the  present  trial.     "  But  if  the 
defendant  should  neglect  to  give  bond,  after  a  reasonable  time  allowed 
for  that  purpose,  or  should  give  a  bond  manifestly  informal  and  insuffi- 
cient, like  the  present,  certainly  the  complainant  would  be  guilty  of  no 
contempt  in  proceeding.     The  party  certainly  cannot  be  entitled  to  the 
benefit  of  the  order,  who  neglects  or  refuses  to  comply  with  the  terms  on 
which  it  was  granted.     In  this  case  I  have  no  doubt  that  the  plaintiff 
might  properly  have  proceeded,  after  he  discovered  what  sort  of  bond 
the  defendant  had  given."     From  this  it  is  apparent,  that  the  Court 
supposed  the  plaintiffs  at  law  to  have  been  early  informed  of  the  informal 
execution  of  the  bond  ;  or  to  have  delayed  without  any  information  at  all 
that  a  bond  had  been  given.     The  fact  turns  out  to  be  that  they  were 
informed  that  a  good  bond  was  given,  and  that  they  never  knew  other- 
wise until  the  trial  of  the  action  at  law  upon  it,  when  it  was  too  late  to 
proceed  on  their  executions.     In  fact  they  could  not  have  known  that 
the  bond  was  otherwise  than  good,  nor  have  discovered  it  to  be  other- 
wise, by  any  examination  they  could  make.     So  far  from  being  manifesfbj 
informal,  it  wore  the  appearance  of  a  perfect  instrument,  and  they  had 
the  assurance  of  the  commissioner  that  it  was  so.     What  then  is  the 
liability  of  the  commissioner?     The  uniform  practice  in  this  Slate,  since 
the  Act  of  nS4,  has  been  for  the  commissioner  to  take  the  bond.    He  is 


676  APPENDIX    TO    VOL.    II.  [*515 

required  to  approve  of  the  security.  He  is  tlie  ministerial  officer  to  issue 
the  writ;  and  whether  it  be  most  proper  that  the  bond  should  be  to  him 
^  -,  *or  to  the  plaintiffs  at  law,  yet  it  is  equally  his  duty  to  see  that  it 
-^  is  taken  and  filed;  as  much  so,  as  it  is  the  duty  of  the  Clerk  in 
the  Court  of  Common  Pleas,  to  take  the  bond  in  cases  of  attachment. 
He  has  undertaken  to  do  it.  He  granted  an  order  restraining  the 
plaintiffs  eo  instanie  the  bond  was  given  ;  and  then  informed  them  that 
the  bond  was  executed  ;  which  had  the  effect  of  an  actual  injunction,  by 
w^hich  the  plaintiffs  were  restrained  ;  which  had  the  effect  of  an  actual 
injunction,  by  which  the  plaintiffs  were  restrained  ;  and  by  which  it  must 
be  presumed  he  intended  they  should  be  restrained.  If  it  had  been 
otherwise,  can  it  be  supposed  that  he  would  have  permitted  the  plaintiffs 
to  go  on  to  trial  in  Equity,  without  undeceiving  them  ?  It  cannot  now 
be  allowed,  that  he  shall  avail  himself  of  the  plaintiffs  facility  in  waiving 
the  writ,  or  of  their  respectful  ol)edieiice  to  his  own  order,  to  screen  him- 
self from  the  consequences  of  his  negligence,  or  bis  unmerited  confidence 
in  the  complainants.  If  the  commissioner  did  not  intend  that  his  order 
should  operate,  and  yet  knew  that  it  had  operated,  as  an  injunction,  it 
was  incumbent  on  him  to  have  apprised  the  plaintiffs  of  the  necessity  of 
a  writ,  and  that  none  had  issued  ;  or  to  give  them  the  earliest  notice  that 
the  supposed  bond  was  a  nullity.  Having  done  neither,  all  the  presump- 
tions are  against  him ;  and  the  Court  are  all  of  opinion  that  he  must  be 
held  lialjle  on  his  bond,  for  the  amount  of  the  plaiutifis'  damages. 
The  motion  to  set  aside  the  nonsuit  is  granted. 

Gantt,  Evans,  Richardson  and  Butler,  JJ.,  concurred. 

Herndon,  for  the  motion.      Thompson ,  contra. 

As  to  Commissioner's  ordering  injunctions — See  Ahlrich  vs.  KirUand,  S  Rich. 
349.     Act  of  1840,  11  Stat.  110,  ^  8,  17.      iN'orns  vs.  mV/Zoms,  Id.  58.     An. 


IX  THE  COURT  OF  10. 


The  Treasurers  vs.  W.  K.  Clowney. 
Before  Gantt,  J.,  Union,  Fall  Term,  1835. 

Judgments  ^vere  obtained  at  law  against  Amelia  A.  S.  O'Kief,  as  administratrix 
of  Thomas  O'Kief.  Afterwards  an  action  was  brought  on  the  administration  b<nid, 
to  which  Jos.  McJonkins  and  Shelton  Swift  were  securities — and  judgment  thereon. 
Next  *  was  filed  a  bill  in  Equity,  to  stay  proceedings  at  law.  A  decretal  r^^i'j 
order  was  obtained,  allowing  an  injunction  on  givingbond,  (see  the  order.) 
An  appeal  was  taken  from  the  decree  made  by  the  Court  in  Equity,  which  ended 
in  a  reversal  of  the  decree  and  dismissal  of  the  complainants'  bill.  (These  pro- 
ceedings will  all  be  shown,  I  can  only  refer  to  them.)  An  action  was  then  insti- 
tuted on  the  bond  taken  by  the  Commissioner  in  Equity,  under  the  decretal  order, 
and  a  nonsuit  was  ordered,  on  the  ground  that  the  commissioner  had  taken  a 
blank  bond  which  created  no  responsibility.  The  present  action  was  then  brought 
on  the  bond  of  the  commissioner,  for  his  default  in  not  having  taken  a  sufficient 
bond.  This  mingled  chain  of  litigation,  involving  both  Law  and  Equity,  took  up 
much  time  and  branched  out  into  a  variety  of  views,  as  will  more  distinctly  ap- 
pear by  reference  to  the  many  grounds  taken  for  an  appeal.  By  the  Act  of  1791,  («) 
December  1st,  Brev.  205,  sec.  39,  commissioners  in  Equity  are  required  to  give 
bond  to  answer  for  any  misfeasance  or  default,  in  like  manner  as  Ordinaries  by 
the  Act  of  1789  are  made  responsible  in  damages  for  their  neglect.  Before  the 
Act  of  1784,(6)  (seel  Brev.  2U3,  sec.  2i»,)  a  complainant  seeking  relief  for  a  verdict 
or  ju'lgment  at  law,  had  to  deposit  the  s'tm  for  which  the  verdict  of  judgment  was 
had,  before  he  could  obtain  an  injunction,  but  the  Act  of  1784  allows  an  injunction, 
on  a  complainant  swearing  to  the  truth  of  the  bill  and  giving  bond  and  secitrittj  to 
be  approved  by  the  Master  in  chancery /or  such  sitm  and  with  such  condition  as  tJie 
Court  shall  direct.  A  subsequent  Act(c)  has  invested  the  master  with  a  power  of 
granting  injunctions,  and  the  decretal  order  in  the  case  before  us  was  made  by 
the  commissioner,  Mr.  Clowney. 

The  bond  and  security  required  by  the  Act  of  1784,  must  be  such,  that  in  the 
event  of  failure  on  the  part  of  a  complainant,  the  amount  which  had  been  recovered, 
should  be  secured  by  the  bond.  It  is  a  substitute  for  the  deposit  of  the  money 
before  required.  It  was  contended  that  the  act  of  the  commissioner  in  this  pro- 
ceeding was  altogether  judicial,  and  created  no  responsibility.  I  thought  other- 
wise. The  granting  the  injunction  was  unquestionably  a  judicial  act. (J)  The 
accompanying  direction,  that  bond  should  be  given,  was  no  more  than  what  the 
law  required,  and  not  of  a  judicial  character  ;  and  if  it  were  to  be  so  considered, 
still  the  taking  a  bond  under  tlie  decretal  order  would  be  altogether  a  ministerial 
act,  and  the  omission  to  take  would  be  a  default  on  the  part  of  the  commissioner, 
which  would  make  him  liable,  and  to  the  extent  of  what  had  been  recovered. 

The  charge  of  the  Court  to  the  jury  was,  that  the  commissioner  was  liable  for 
his  default  in  not  taking  the  bond,  and  to  the  extent  of  the  judgment — The  jury- 
found  accordingly. 

(«)  7  Stat.  258,  §§  4,  5.     See  Act  of  1813,  7  Stat.  315,  ?  4.     An. 
{b)  7  Stat.  219,  g  9.     An.  (c)  1825,  7  Stat.  33U,  ^  10.     ^«. 

(J)  7  Rich.  G5,  70. 


678  APPENDIX    TO   VOL.    II.  [*ol7 

Defendant  appeals.     For  nonsuit. 

1.  Because  the  defendant,  in  doing  the  act  complained  of  by  plaintiff  in  this 
case,  acting  in  his  judicial  capacity,  and  is  therefore  not  liable  to  a  civil  action. 

2.  Because  the  commissioner  in  Equity,  on  granting  an  injunction  under  the 
Act  of  1S25,  is  not  required  by  law  to  take  any  bond. 

3.  Because  the  commissioner  is  not  bound  to  take  any  bond  in  cases  of  injunc- 
tion, under  any  statute  of  this  State.  The  Act  of  17S4,  prescribes  that  the  bond 
shall  be  given  to  the  plaintiff ;  and  the  only  duty  reciuired  of  the  commissioner, 
is  to  approve  the  security.  And  the  Act  of  1791,  requires  the  bond  to  be  given 
to  the  sheriff;  and  the  commissioner  is  therefore  not  liable  on  this  official  bond, 
tor  misfeasance  or  default  in  his  duty. 

For  a  new  trial. 

1.  Because  the  defendant  is  not  liable  to  a  greater  extent  than  the  value  of  the 
assets  of  O'Kief  s  estate,  in  the  hands  of  the  commissioner  to  be  administered, 
^.^_     which  was  *$11.91  in  the  hundred  dollars  ;  the  Court  held,  he  was  liable 

-'  for  the  full  amount  of  plaiiitiff's  debits  against  the  estate  of  O'Kief. 

2.  Because  defendant,  if  liable,  is  only  liable  for  the  costs  in  the  injunction 
case,  as  the  condition  of  the  bond  was,  that  the  obligers  should  stand  to,  abide 
and  perform  the  decree  in  Equity,  which  was,  "  that  the  bill  should  be  dismissed 
with  costs." 

3.  Because  the  Court  should  have  instructed  the  jury,  that  if  they  should  find, 
that  the  defendant,  when  taking  the  bond,  really  and  in  triith  thought  and  be- 
lieved that  the  bond,  in  the  form  it  was  taken,  was  legal  and  binding  on  the  par- 
ties, then  that  would  only  constitute  an  error  in  judgment,  for  which  he  would 
not  be  liable. 

4.  Because  the  injunction  bond,  being  filled  up  from  the  memoranda  $500  and 
the  date,  and  being  signed,  sealed  and  witnessed  ;  and  being  filled  before  the  trial, 
was  a  good  and  valid  bond. 

5.  Because  there  was  no  writ  of  injunction  actually  sued  out,  and  the  plaintiff 
at  law,  in  the  suits  intended  to  have  been  enjoined,  were  not  legally  restrained 
from  proceeding  at  law,  and  suspended  their  proceedings  from  choice. 

6.  Because  there  was  no  injunction  in  existence,  after  the  coming  in  of  the 
demurrer,  and  plaintiffs  might  have  proceeded  at  law. 

Curia,  per  Harper,  Ch.  My  opinion  will  be  expressed  with 
reference  to  the  fifth  ground  of  appeal,  "  because  there  was  no  writ  of 
injunction  sued  out,  and  the  plaintiffs  at  law  in  the  suits  intended  to 
have  been  enjoined,  were  not  leg-ally  restrained  from  proceeding  at  law. 

The  Act  of  Assembly  of  1784,  under  which  the  bond  in  question  was 
jriven,  provides,  "  and  whereas,  the  obliging  a  complainant,  seeking  re- 
lief from  a  judgment  or  verdict  at  law,  to  deposit  the  sura  for  which 
such  judgment  or  verdict  was  obtained,  before  an  iujuuction  to  stay 
execution,  although  his  prayer  is  manifestly  founded  in  Equity,  hath 
been  and  would  be  attended  with  much  inconvenience  to  suitors,  and  in 
many  instances,  may  amount  to  a  denial  of  justice."  "Be  it  therefore 
enacted,  that  a  party  applying  for  an  injunction  to  stay  proceedings  in 
an  action  at  law,  or  judgment,  or  execution,  or  the  levying  of  execution, 
shall  be  entitled  to  such  injunction,  on  making  oath  or  giving  his  allir- 
niativc  (according  to  the  form  of  his  profession,)  to  the  truth  of  his  bill, 
and  giving  bond  to  the  ])laintifF  at  law,  with  security  to  be  api)roved  by 
the  Master  in  chancery,  for  such  sum  and  with  such  condition  as  the 
Court  shall  direct,"  &c. 

Now,  it  is  hardly  necessary  to  say,  that  by  the  word  injunction,  is 
commonly  meant  the  icrit  of  injunction.  "  An  injunction  is  a  writ  issuing 
by  the  order  and  under  the  seal  of  the  Court  of  Equity."  Eden  or 
Injunc.  1.   "  An  injunction  is  a  remedial  writ,  in  nature  of  a  prohibition." 


*518] 


TREASURERS   VS.    CLOTVNET. 1834.  679 


2   Harr.   Ch.    20,     "  The  writ  of  injunction  is  served  by  showing  tlie 
original  under  seal,  and  delivered  a  true  copy  thereof,  to  the  party  him- 
self."     Id.  267.     The  order  of  a   Cliancellor  for  the   granting  of  an 
injunction  is  not  certainly  of  itself  an  injunction,  nor  does  it  restrain  the 
party,  unless  the  conditions  upon  which  it  was  granted  shall  have  been 
complied  with,  and  the  party  notified  that  they  have  been  complied  with, 
by  being  served  with  the  writ.     The  officer  of  the  Court,  however,   is 
bound  at  his  peril,  to  see  that  the  conditions  have  been  complied  with, 
and  a  bond  given  conformable  to  law  and  the  order  of  the  Court  before 
issuing  the  writ.     The  Act  of  the  commissioner  in  sealing  and  delivering 
the  writ  is  certainly  a  mere  ministerial  act ;  and  it  does  not  in  any  de- 
gree alter  the  character  of  the  act,  that  in  order  to  its  performance,  he 
must  incidentally   exercise  a  discretion   in   determining  for  himself  a 
question  of  law.     There  is  hardly  any  ministerial  act  which  may  not 
involve  such  an  exercise  of  discretion.     The  sheriff  must  often  decide  at 
his  own  peril,  questions  of  law  involving  the  title  to  property,  before 
taking  goods  in  execution.     The  taking  of  bail  is  a  ministerial  act,  yet 
the  sheriff  must  *decide  for  himself,  not  only  on  the  sufficiency  of  r:j:KiQ 
the  security,  but  the  proper  form  of  the  bond.     If  in  this  case,  L 
the  writ  had  been  actually  issued,  what  would  have  been  the  breach  of 
his  official  bond  assigned  in  an  action  against  the  commissioner  ?     It 
would  have  been  that  the  defendant  had  issued  the  writ  before  a  bond 
had  been  given  conformable  to  law  and  the  order  of  the  commissioner. 
Under  the  Act  of  1825,  the  defendant  was,  for  this  purpose  vested  with  the 
power  of  a  chancellor,  and  acted  in  that  capacity  in  granting  the  order. 
And  on  that  breach,  the  action  must  have  been  sustained  ;  for  in  contem- 
plation of  law,  no  bond  at  all  was  taken.     And  it  is  immaterial  whether 
the  giving  a  bond  to  the  commissioner  for  the  security  of  the  plaintiff  at 
law,  be  a  sufficient  compliance  with  the  law  directing  the  bond  to  be 
given  to  the  plaintiff,  or  not.     In   either  case,  the  commissioner  would 
have  issued  the  writ  before  the  law  was  complied  with.     I  may  observe, 
however,  that  in  my  opinion,  the  giving  of  a  proper  bond  to  the  com- 
missioner would  have  been  a  substantial  compliance  with  the  law.  '  The 
obligor  would  certainly,  so  far  as  I  can  see,  be  bound  by  such  a  bond. 
It  may  be  regarded  as  given  to  the  officer  in  trust  for  the  plaintiff,   and 
would  afford  him  the  same  security  as  if  given  directly  to  himself.     The 
universal  practice,  in  which  it  would  be  dangerous  and  inconvenient  to 
innovate,  has  established  this  as  a  sufficient  compliance  with  the  law. 

It  is  true,  that  in  the  anonymous  case,  3  Atk.  567,  where  a  party  had 
been  served  with  a  writ  of  injunction,  not  sealed,  and  nevertheless  pro- 
ceeded at  law,  and  there  was  a  motion  to  attach  him  for  contempt,  the 
Chancellor  said,  "As  to  the  injunction's  not  being  scaled,  that  is  no  excuse 
for  his  proceeding  at  law,  after  the  injunction  was  granted,  because  there 
have  been  instances  here  where  a  defendant,  or  his  attorney  only,  have 
been  present  upon  an  order  for  an  injunction,  and  they  have  proceeded  at 
law  before  it  has  been  sealed,  that  the  Court  has  considered  this  as  a  con- 
tempt, and  committed  the  persons  for  it."  On  the  same  principle  was 
the  decision  in  Skipp  vs.  Harrwood,  Id.  564,  where  a  defendant  was 
present  in  Court,  when  a  decree  was  pronounced,  appointing  a  receiver, 
and  on  the  same  morning,  before  the  decretal  order  was  formally  passed, 
removed  goods  in  order  to  elude  the  decree,  the  Chancellor  committed 


680  APPENDIX    TO   VOL.    II.  [*519 

liim  for  a  contempt.  So,  I  have  no  doubt  but  that  with  us,  if  upon  the 
trranting  of  an  order  for  injunction,  the  plaintiff  at  law,  with  a  view  to 
elude  the  order,  should  at  once  proceed  before  time  were  allowed  for 
iriving  the  bond  and  sealing  and  serving  the  writ,  he  would  be  in  contempt. 
But  if  the  defendant  should  neglect  to  give  any  bond,  after  a  reasonable  time 
allowed  for  the  purpose,  or  should  give  a  bond  manifestly  informal  and 
insufficient  like  the  present,  certainly  the  plaintiff  would  be  guilty  of  no 
contempt  in  proceeding.  The  party  certainly  cannot  be  entitled  to  the 
benefit  of  the  order,  who  neglects  or  refuses  to  comply  with  the  terms  on 
which  it  was  granted.  In  this  case,  I  have  no  doubt  but  that  the  plaintiff 
might  properly  have  proceeded,  after  he  discovered  what  sort  of  bond  the 
defendant  had  given.  And  here  it  may  be  observed,  that  the  party  must 
exercise  the  very  same  sort  of  discretion  as  that  exercised  by  the  commis- 
sioner, which  has  been  supposed  a  judicial  discretion.  He  must  neces- 
sarily decide  for  himself,  as  he  may  be  advised,  whether  the  law  had  been 
complied  with  by  the  giving  of  a  sufficient  bond,  and  proceed  at  his  own 
peril,  if  he  shall  be  found  to  have  decided  amiss.  ]3ut  neither  to  him 
nor  the  commissioner,  as  such,  has  the  law  given  any  judicial  authority, 
so  as  to  decide  directly  on  the  character  or  validity  of  the  instrument,  and 
bind  other  individuals  or  tribunals  by  his  determination. 
The  motion  for  new  trial  is  granted. 

Richardson,  J.,  Johnson,  C,  O'Neall,  J.,  Evans,  J.,  J.  Johnston, 
C,  Butler,  J.  and  De  Sausstjre,  C,  concurred. 

See  Supra,  510.     An. 


OBEX  TO  BOTH  VOLUMES. 


[Thefnliosin  this  Tn'lex  marked  with  an  asterisk  (*)  refer  to  the  folios  of  the  former  edition; 
those  unacconipanied  hy  the  asterisk  to  the  present  issue.  The  volumes  are  designated  by  the  numerals 
(i.,  ii.,)  preceding  the  folios  ] 

ABATE. 

1.  A  sum.  pro.  brought  on  a  note  drawn  payable  to  William  Alex- 
ander &  Brothers;  pending  the  suit,  William  Alexander  died.  On 
the  trial,  the  presiding  judge  ordered  a  nonsuit — nonsuit  set  aside,  and 
ordered  to  be  marked  abated,  it  being  the  proper  order  that  should 
have  been  made  under  the  circumstances.  Alexander  &  Brothers  vs. 
Davison  ib  Davison,  ii.,  *49 380 

ABSENCE  FROM  THE  STATE. 

1.  Where  a  party  [defendant)  is  temporarily  absent  from  the  State, 
and  a  copy  writ,  with  a  notice  endorsed  thereon,  is  left  at  his  resi- 
dence during  his  absence,  it  was  held  to  be  a  good  and  valid  service  of 
such  writ.     Bank  of  S.  0.  vs.  Simpson,  ii.,  *352 573 

ACCEPTANCE,     ^qq  Attorney  2;  Administrator. 

ACTION  ON  THE  CASE. 

1.  Any  words  occasioning  actual  damage  to  one,  are  actionable, 
and  it  is  not  necessary  that  they  should  be  defamatory. 

Sed,  this  doctrine,  however,  must  be  taken  subject  to  the  limita- 
tion, that  the  injury  complained  of  must  not  be  the  unlawful  acts  of 
others,  because  they  are  answerable  themselves,  and  the  damage  sus- 
tained must  be  the  immediate  consequence  of  the  defendant's  words. 
Bentlei/  ads.  Reynolds,  i.,  *16 10 

2.  In  an  action  on  the  case,  where  the  facts  as  to  probable  cause 
are  not  disputed,  a  Judge  may  take  upon  himself  to  say  what  is,  and 
•what  is  not,  probable  cause.  But  where  the  facts  are  contested,  pro- 
bable cause  becomes  a  mixed  question  of  law  and  fact,  to  be  decided 
by  the  jury,  under  the  instructions  of  the  presiding  judge.  Paris  vs. 
Waddell,  \.,  *358 _. 233 

3.  In  an  action  on  the  case,  for  employing  a  slave  that  is  runaway, 
to  entitle  the  plaintiff  to  recover  damages,  where  he  has  alleged  the 
defendant's  acts  to  have  been  done  with  a  scienter  of  the  fact 
that  the  negro  was  the  runaway  slave  of  the  plaintiff,  he  must  prove 
the  scienter,  unless,  from  the  circumstances,  the  law  would  presume  it. 
Bell  vs.  Lakin,  I,  *3C4 237 

ADMINISTRATOR. 

1.  When  a  defendant,  in  an  action  against  him,  as  administrator, 
fails  to  plead  "■  plene  administravit,"  but  rests  his  defence  upon  the 
plea  of  "  nan  est  factum,"  or  some  other  plea,  and  a  recovery  is  had 
against  him  on  such  plea,  the  judgment  thus  obtained  is  prima  facie 
evidence  to  charge  the  administrator,  in  an  action  suggesting  a  devas- 
tavit ;  and  the  return  of  milla  buna  on  the  execution,  is  evidence  of 
the  same  character, 

2.  The  return  of  nulla  bona  is  not  conclusive,  and  the  defendant  is 
not  precluded  from  showing  that  he  had  no  assets  of  the  intestate's 
estate  to  be  administered.     Young  vs.  Kennedy,  ii.,  *80 399 


682  INDEX. 

ADMINISTRATION  BOND. 

1.  A  creditor  may  sue  upon  an  administration  bond,  without  citing 
the  administrator  to  account  before  the  Ordinary,  or  obtaining  a 
decree  against  him. 

2.  In  such  case,  it  is  necessary  to  show,  that  the  demand  has  beea 
established  against  the  estate ;  and  that  assets  came  to  the  hands  of 
the  administrator  sufficient  to  pay  it.  which  have  been  wasted  or 
misapplied.     The  Ordinary  of  Charleston  vs.  Hunt,  i.,  ^SSO 247 

3.  A  judgment  at  law  against  the  administrator  for  the  original  de- 
mand, with  a  return  of  nulla  bona  on  execution,  together  with  pro- 
ceedings in  Equity,  to  which  the  administrator  was  a  party,  and  by 
which  it  appeared  that  assets  had  come  to  his  hands  sufficient  to  pay 
the  demand,  but  which  he  had  applied  to  the  payment  of  debts  of  in- 
ferior degree,  are  sufficient  to  entitle  the  creditor  to  recover  from  the 
securities lb. 

AFFIDAVIT. 

1.  An  affidavit  to  hold  to  bail,  stating  that  the  defendant  was 
indebted  to  the  plaintiff  "  in  the  sum  of  one  hundred  and  forty-five 
dollars,  on  a  note  and  due  bill,  bearing  interest,"  was  held  to  be  a 
sufficient  compliance  with  the  Act,  and  an  exoneretur  on  the  bail  bond 
was  refused.     Tobias  vs.  Wood,  i.,  *103 69 

2.  Where  a  party  swears  that  the  defendant  is  indebted  to  him,  he 
swears  in  a  legal  point  of  view  and  in  legal  parlance,  to  a  present  debt 
that  is  due,  and  not  a  future  one lb. 

AGENT  AND   PRINCIPAL. 

1.  One,  being  the  agent  of  another,  drawing  a  proraisory  note,  and 
signing  it  with  his  own  name,  thus  :  "  Daniel  McLean  for  John 
McLean,"  it  was  held  that  it  was  the  note  of  "  Daniel  McLean,  the 
agent,  and  not  the  note  of  the  principal.    Taylor  vs.  McLean,  i.,  *352.  229 

2.  An  auctioneer's  clerk  is  not  such  an  agent,  within  the  statute  of 
frauds,  whose  entry  will  bind  the  party  ;  unless  the  authority  of  the 
clerk  (to  make  the  entry)  has  been  specially  obtained  from  the  party 
who  is  bound  by  his  act,  or  he  has  afterwards  assented  to  be  charged 

by  it.     Entz  vs.  Mills  &  Beach,  i.,  *453 300 

AGREEMENT. 

1.  The  plaintiff  and  defendant  entered  into  a  special  written  agree- 
ment to  submit  the  matters  in  dispute  between  them  to  counsel  ;  but 
no  particular  counsel  was  named,  or  time  when  the  matter  was  to  be 
so  submitted — defendant  agreeing  to  pay  according  to  the  instructions 
of  the  counsel ;  and  in  default  of  their  getting  a  decision,  then  the 
plaintiff  was  to  file  a  bill  in  the  Court  of  Equity,  and  the  decree  of 
that  Court  was  to  be  conformed  to  by  the  defendant.  This  was  held 
to  lie  an  agreement  to  arbitrate.     I'ercival  ads.  Jlerbemont,  Adm'r., 

i.,  *.59 38 

2.  An  agreement  to  arbitrate,  or  a  bond  to  submit  to  arbitration, 
may  be  the  suliject  of  a  suit  when  the  damages  stipulated,  or  the 
penalty  will  authorize  a  recovery;  but  such  an  agreement  or  bond 
would  not  deprive  eitlier  party  of  his  remedy  in  the  Courts,  or  oust 
them  of  tlieir  jurisdiction  in  regard  to  the  matter  in  dispute lb. 

3.  A  vineyard,  though  not  annually  jilanted,  requires  great  prepar- 
atory attention,  as  well  as  much  agricultural  labor  and  cultivation  to 
bring  the  fruit  to  perfection  ;  and  the  products  arising  therefrom  may 
be  denominated  a  crop  ;  and  hands  employed  in  agricultural  pursuits, 
whether  in  a  vineyard  or  a  cornfield,  are  liable  to  be  retained  by  the 
administrator  of  an  estate,  after  the  first  of  March,  until  the  crop  is 
gathered,  or  at  farthest  tmtil  the  last  of  December,  should  the  crop 
uot  be  gathered  before  that  time lb. 


INDEX.  683 

4.  "Wlierc  the  plaintifT",  being  tenant  for  life,  anJ  tlio  romaindorman 
dnrina:  bis  life  time,  entered  into  the  following  written  agreement, 
"  that  the  said  0.  H.  do  agree  to  let  E.  II.  build  on  the  land  willed  to 
him  by  his  father,  at  the  death  of  the  said  C,  II.  the  said  C.  II.  do 
also  agree  that  E.  M.  may  open  and  make  all  the  improvements  on 
said  land  that  he  thinks  projier.  The  said  E.  11.  do  agree  not  to  in- 
terrupt any  thing  that  belongs  to  the  said  C.  H.  in  person  or  property. 
If  the  said  E.  II.  should  interrupt  or  suffer  any  of  his  fixniily  to  inter- 
rupt any  thing  belonging  to  the  said  C.  H.  the  said  E.  H.  do  agree  to 
pay  the  full  value  in  cash,  or  forfeit  all  the  improvements  on  said  land." 
It  was  held,  that  the  plaintiff  had  not,  by  this  agreement,  surrendered 
to  the  remainderman  her  freehold  for  life.  That  this  paper  conveyed 
nothing  more  than  a  tenancy  at  will,  or  a  lease  to  terminate  upon  rea- 
sonable notice,  or  a  privilege  during  his  life  and  peaceable  behavior. 

5.  The  Court  say,  "  that  in  such  anomalous  agreements,  we  must 
look  to  the  instrument  itself  for  its  own  construction,  as  identical 
papers  cannot  be  found  already  adjudged."  Hatcher  vs.  Hatcher,  ii., 
*429 G21 

ALIENS. 

1.  Where  one  died  intestate,  seized  and  possessed,  in  fee-simple,  of 
a  house  and  lot  in  the  city  of  Charleston,  leaving  surviving  him,  as  his 
next  of  kin,  a  wife,  the  (defendant,  who  is  an  alien,)  and  nephews, 
born  of  alien  sisters,  and  a  brother,  a  native  born  subject  of  the  United 
States,  but  who  has  resided  in  France  for  the  last  thirty  years — in  an 
action  of  trespass  to  try  titles  to  the  said  freehold,  between  the 
nephews  (sons  of  the  alien  sisters  of  the  deceased,)  and  the  wife,  it 
was  held,  that  upon  the  death  of  the  intestate,  the  freehold  descended 
upon  the  brother  of  the  intestate  ;  that  he  alone  could  take  the  estate 
under  the  statutes  of  South  Carolina.  Descoiies  &  Drlscoll  vs.  Talvande 
ii.,  *300 539 

ALLEGATA   AND  PROBATA. 

1.  He  who  brings  an  action,  on  a  written  instrument,  must  set  it 
out  correctly  ;  and  that  which  he  offers  in  evidence,  must  correspond 
with  that-which  he  has  described.  The  name  of  the  original  payee,  to 
a  promissory  note,  is  an  essential  part  of  the  description.  And  a 
misrecital  is  fatal.     Cherry  vs.  Fergeson,  ii.,  *15 3G1 

APPEAL. 

1.  A  defendant  who  is  a  party  to  an  appeal,  is  bound  to  take 
notice  of  the  result  of  the  appeal ;  and  where  a  defendant  pending  an 
appeal,  has  left  the  "  prison  rules,"  so  soon  as  the  appeal  is  decided 
against  him,  he  should  return  within  the  rules;  otherwise  bis  bond  is 
forfeited.     Baker,  Johnson  &  Co.  vs.  Buslmell,  i.,  *272 ITS 

ARBITRATION  AND  AWARD.     See  AorrcmenU  2. 

1.  When  a  case  is  referred  to  arbitration,  the  object  is  to  supercede 
by  the  judgment  of  the  arbitrators,  the  verdict  of  a  jury.  It  would 
follow,  that  the  award  should  be  either  for  a  certain  sum  ascertained, 
or  for  a  sum  capable  of  being  ascertained  by  reference  to  some  part 
of  the  record.     Coxe  vs.  Gantt,  i.,  *302 19" 

ARREST  OF  JUDGMENT,     See    Verdict,  3. 

ASSAULT  AND  BATTERY.     See  Ecidence,  &,  7. 

ASSIGNMENT. 

1.  A  debtor  taking  the  beneGt  of  the  "  Prison  Bounds'  Act,"  ren- 
dered in  his  schedule,  inter  alia,  a  small  tract  of  land,  and  assigned 
bis  schedule  to  W.   F.  P.  (the  plaintiff  in  the  case  ou  which  be  bad 


684  INDEX. 

been  arrested.)  W.  F.  P.  afterwards  assigned  his  right  to  the  assign- 
ment, the  judgment  and  the  ca.  sa.'s  not  under  seal,  and  without 
witnesses  to  the  plaintiff.  He  constituted  P.  E.  P.,  his  attorney,  to 
sell  the  land,  who  advertised,  sold,  and  became  the  purchaser  of  it, 
and  afterwards  conveyed  to  the  plaintiff:  Held,  that  the  deed  of  P. 
E.  P.,  was  null  and  void,  and  that  the  assignment  of  an  assignment 
cannot  have  the  effect  to  pass  land.     Joties  vs.  Crawford,  i.,  *378. . ..   243 

2.  An  instrument  to  pass  the  title  of  land,  must  be  under  seal  and 
■witnessed  by  two  witnesses lb. 

3.  The  true  view  of  an  assignment  under  the  "  Prison  Bounds' 
Act,"  is  not  that  it  vests  the  assignor's  estate  absolutely  in  the 
assignee,  but  that  it  operates  as  a  mere  authority  to  him  to  enter 
upon,  recover,  sell,  and  convey,  in  satisfaction  of  the  debt Ih. 

ASSUMPSIT.     See  Husband  and  Wife,  1. 

1.  A  merchant  having  in  store  the  cotton  of  divers  persons  to  ship, 
and  does  ship  it,  and  it  is  lost  by  some  means :  Held,  that  assumpsit 
is  the  proper  form  of  action  to  recover  the  price  of  the  cotton.     Li/les 

vs.  Administrators  of  McFie,  i.,  *21 14 

2.  Every  person  who  undertakes  any  duty,  trust,  office,  or  employ- 
ment, impliedly  contracts  with  those  who  entrust  or  employ  him  to 
perform  his  undertaking  with  skill,  diligence  and  integrity  ;  and  the 
employer  may  maintain  an  action  of  assumpsit  ai  ainst  him  for  any 
injury  which  he  has  sustained  through  the  absence  of  any  of  these 
qualities 16. 

ATTACHMENT. 

1.  The  Act  of  1799,  requiring  the  plaintiff  in  any  writ  of  attachment 
to  enter  into  bond,  before  the  Clerk  of  the  Court  of  the  district  in 
which  such  writ  of  attachment  is  issued  to  the  defendant,  in  double 
the  amount  of  the  debt  or  demand  for  which  the  attachment  is  issued, 
requires  that  the  bond  given  shall  be  only  executed  by  the  plaintiff 
or  his  attorney  in  fact,  and  acting  in  his  room  and  stead.  No  other 
person  is  authorized  to  execute  such  bond.     Myers  vs.  Lewis,  i.,  "54.     35 

2.  Defendants  purchased  from  plaintiff  a  box  of  goods,  which  plain- 
tiff had  received  from  Pitray  &  V^iel,  by  a  power  of  attorney  from  one 
Cuvillier,  and  upon  which  plaintiff  had  paid  the  expenses,  and  was  in 
the  said  power  of  attorney  declared  the  purchaser.  After  the  sale  by 
plaintiff  to  defendants,  a  writ  of  foreign  attachment  was  issued  against 
the  said  Cuvillier  ads.  Charles  Jugnot.  The  account  was  afterwards 
attached  in  the  hands  of  the  defendants,  and  the  money  paid  by  them 
into  Court,  without  notice  to  the  plaintiff.  Held,  that  the  plaintiff 
■was  not  estopped  by  the  proceedings  in  attachment  from  recovering 
against  the  defendants  the  price  of  the  box  of  goods  ;  and  their  i)ay- 
ing  the  money  into  Court  did  not  discharge  their  liability.  Olia  vs. 
Fiijeniutx  d'-  Chnmjiy,  [.,  *2()3 132 

3.  There  is  nothing  in  the  Attachment  Act  which  would  require 
one  to  come  into  Court  and  litigate  his  rights  in  a  suit  to  which  he  is 

not  a  party lb. 

4.  'I'hen;  is  nothing  in  the  attachment  law  which  precludes  a  defend- 
ant from  availing  himself  (on  a  motion,)  of  any  defect  or  irregularity 

in  the  process  of  attachment.     Harper  vs.  Scuddi/,  i.,  *2G4 173 

5.  The  Hth  section  of  the  attachment  Act,  passed  1744,  contains  the 
provision  "that  if,  at  any  time,  within  the  year  and  day,  any  }>erson 
shall  appear  as  attorney  to  the  absent  debtor,  and  will  put  in  bail  to 
answer  the  action,  and  pay  the  condemnation,"  then  the  uttachinent 
shall  bo  dissolved. 

0.  The  4th  section  of  the  Act  of  1785,  provides,  "that  all  attach- 


INDEX.  685 

ments  shall  be  repleviable,  hy  appearance,  and  putting  in  special  bail, 
if  by  the  Court  ruled  so  to  do." 

7.  'rhe?e  provisions  constitute  the  law  upon  the  subject.  /And 
the  Act  of  1839  has  not  altered  tiie  old  law.  Vidr  3  McC.  Ml.  Fife 
d-  Co.  vs.  Clarke,  as  ilhislrative  of  the  tato.  Crosslin  vs.  Reed  &  Reed, 
etal.  ii.,  *10 " 56 

ATTORNFvY. 

1.  "Where  an  attorney,  acting  under  a  power  of  attorney  from  the 
attorney  of  the  principals,  recites,  in  the  deed  of  release,  the  power 
from  the  principals  to  the  attorney,  or  person  from  whom  he  derives 
Lis  powers,  and  in  the  body  of  the  said  release  says  "  by  virtue  of  the 
authority  vested  in  me  as  aforesaid,  and  in  the  name  and  in  behalf  of  the 
said  Yarnum,  Fuller  &  Co."  (the  principals,)  "  and  others,  I  accept 
the  provisions  in  the  said  assignment,  made  in  this  behalf,  and  do 
further  release  and  discharge,  &c.  Signed,  J.  Winslow,  [r,.s.] 
attorney  for  C.  P.  M.  J.  Winslow,  [seal]  agent  for  Yarnum,  Fuller  & 
Co."  It  was  held,  that  this  execution  was  in  compliance  with  the 
rule  which  requires  a  deed  executed  by  an  attorney  to  be  sealed  and 
delivered  in  the  name  of  his  principal. 

2.  An  acceptance  of  a  provision  under  a  deed  of  assignment,  and  a 
release  of  the  principal,  with  the  assent  of  the  security,  is  equivalent 
to  a  discharge  by  operation  of  law,  and  the  rights  of  all  concerned 
are  the  same  under  one  as  well  as  the  other.       Vannim,  Fuller  &  Co. 

vs.  Evans,  ii.,  *409 608 

ATTORNMENT. 

1.  Where  a  party  enters  upon  land,  as  the  tenant  of  another,  he 
cannot  dispute  the  title  of  the  party  under  whom  he  entered,  by 
attorning  secretly  to  a  stranger.  Camden  Orphan  ISociety  vs.  Lock- 
hart,  et  at.  ii.,  *84 402 

AUCTIONEER.     See  Agent  and  Principal,  2. 

AYERMENT.     See  Pleas  and  Pleading,  3.     Slander,  4. 

BAIL. 

1.  A  plaintiff  after  the  defendant  had  been  arrested  by  virtue  of  an 
order  for  bail,  has  a  right  to  discharge  the  bail  from  any  liability  ;  and 
also  to  discharge  the  defendant  without  his  consent,  although  he  may 
have  given  bond  for  the  prison  rules,  and  filod  his  schedule,  with  the 
view  of  taking  the  Insolvent  Debtors'  Act.  Clarke,  McTicr  &  Co.,  vs. 
Simpson,  1.,  *286 187 

2.  A  prisoner  confined  under  an  order  for  bail,  and  who  has  filed 
his  schedule  with  the  clerk,  and  given  notice  to  his  creditors  of  his 
intention  to  take  the  Insolvent  Debtors'  Act,  cannot  take  this  Act 
where  he  has  been  discharged  by  the  plaintiff  at  whose  suit  he  has 
been  arrested.  lb. 

3.  It  is  questionable  M'hether  a  defendant  can  be  arrested  pending 
a  suit,  where  he  has  l)cen  previously  arrested  and  held  to  bail,  and  by 
the  plaintiS"  discharged lb. 

BAILEE. 

1.  Where  money  has  been  placed  in  the  hands  of  a  party,  as  agent 
or  bailee,  with  instructions  for  a  particular  purpose,  and  the  bailee  has 
acted  in  pursuance  of  these  instructions,  the  adminstrator  of  the  per- 
son placing  the  funds  cannot  sustain  an  action  of  assumpsit  against 
the  bailee,  for  the  particular  fund.  Slm})soti,  Adrn'r,  vs.  Barri/,  ii.,  '^"309. 

2.  The  general  rule  unquestionably  is,  that  if  the  owner  of  a  chattel 
Lire  it  to  another  he  cannot  maintain  either  trespass  or  trover  against 
a  third  person,  in  respect  to  an  injury  to,  or  conversion  of  it,  during 


686  INDEX. 

the  time  it  is  so  hired.  But  to  this  general  rule  there  is  one  exception, 
■which  is,  if  the  bailee  do  an  act  inconsistent  with  the  bailment,  and 
calculated  to  defeat  the  rights  of  property  of  the  owner,  he  may  treat 
the  bailment  as  ended,  and  maintain  trover. 

3,  Where  a  married  woman,  previous  to  her  marriage,  executed  to 
the  plaintiff  a  deed  of  trust,  for  certain  lands  and  slaves  therein  named, 
by  which  it  was  the  duty  of  the  trustee  to  permit  the  ce-^tui  que  trui^t  dur- 
ingtheterm  of  hernaturallife.to  use, possess  and  enjoy  the  rents, profits, 
issues,  interests  and  emoluments,  of  the  said  lands  therein  mentioned, 
too-ether  with  the  profits,  hire,  labor,  and  services  of  the  slaves  afore- 
said;  and  the  use,  profits  and  increase  of  the  stock  and  furniture 
aforesaid,  without  any  limitation  whatever  :  provided  always,  the  same 
shall  in  no  wise  be  subject  to  the  control,  debts,  contracts,  or  inter- 
niedling  of  any  future  husband,  or  other  person  whatsoever ;  and  pro- 
vided the  said  personal  property  in  said  deed  shall  not  be  removed 
out  of  the  district  of  Charleston  without  the  consent  of  the  trustee 
(the  plaintiff)  first  obtained  in  writing.  The  plaintiff  hired  the  slaves 
to  Baxter,  with  whom  the  cesfui  que  trvst  had  intermarried,  and  they 
■were  in  his  possession  in  Orangeburg  district  at  the  time  they  were 
taken  by  execution  against  the  said  Baxter,  and  sold.  Hdd  that  the 
plaintifl'  could  maintain  trover  for  the  conversion  of  the  slaves  sold, 
against  the  purchaser  at  sheriff's  sale,  it  being  in  direct  violation  of  the 
terms  of  the  trust.       Clark  vs.  Fuoser  ii.,  *434 62-1 

13ASTAKDY. 

1.  Two  indictments  may  be  sustained  under  the  Act  of  1839, 
against  the  putative  father  of  two  bastard  children,  born  at  one  birth, 
but  the  indictments  and  the  recognizances  should  describe  each  child 
by  name  and  complexion,  hair  and  sex,  or  by  some  means  of  separate 
identity.     The  State  vs.  Derrick,  I,  *338 220 

2.  The  Act  of  1839,  is  a  repeal  of  1795,  on  the  subject  of  bastardy.    lb. 

BILLS  OF  EXCHANGE,  NOTES  AND  BONDS. 

1.  A  blpouk  note  signed  by  a  firm  with  sureties  thereto,  and  by  one 
of  the  firm  placed  in  the  hands  of  the  plaintiff,  a  factor  in  Charleston, 
as  collateral  security  for  acceptances  of  drafts,  to  be  drawn  on  him 
by  the  firm,  and  afterwards  filled  up  in  good  faith  by  the  ])laintiff,  in 
accordance  with  his  instructions,  with  the  sum  of  $5000.  the  sum 
agreed  on  by  them  at  the  time  the  note  was  left,  was  held  not  to  be 
void,  and  that  the  plaintiff  had  the  same  right  that  an  endorsee  would 
have  to  fill  up  the  terms  of  an  endorsement  above  the  name  of  his 
endorser.      Carson  vs.  Hill  d'  Jones,  i.,  *7G 50 

2.  The  plaintiff  after  he  accepted  drafts  drawn  by  the  firm,  to  the 
amount  of  $7, .500,  acquired  as  perfect  a  right  to  the  note  as  if  he  had 
bought  it ;  and  his  right  could  only  be  divested,  and  the  defendants' 
liabilities  discharged  by  payment 10. 

_  3.  All  the  payors  to  a  joint  and  several  promissory  note  are  prin- 
cipals, and  their  relation  to  each  other  does  not  effect  their  liability  to 
the  payee J^, 

4.  Where  a  guaranty  is  absolute  in  its  terms,  and  definite  as  to 
its  amount  and  extent,  in  such  case  no  notice  to  the  guarantor  is 
necessary /^, 

5.  AVhcro  a  debtor  does  not  direct  the  application  of  money  paid  to 
any  specific  demand,  where  there  are  two  or  more,  the  creditor  who 
receives  ihe  money  may  make  his  own  application lb 

6.  The  surety  is  bound  by  the  terms  of  the  contract,  and  cannot  be 
discharged  unless  the  i)rincipal  varies  the  terms  of  the  original  con- 
tract, by  enlarging  the  time  of  performance lb. 

7.  A  note  given  for  usurious  interest,  by  the  Acts  of  1777  and  1831 


INDEX.  '  687 

is  void,  as  well  in  the  hands  of  an  innocent  holder,  as  between  the 
original  parties  to  it ;  and  usury  may  be  given  in  evidence  under  the 
plea  of  the  general  issue  in  assumpsit,  the  whole  note  having  been 
given  ibr  usury.     GaUlarcl  vs.  LeScugneiii;  i.,  *225 146 

8.  The  husband  of  a  "feme  sole  trader,"  is  a  competent  witness  to 
prove  usury  under  the  Act  of  1777 Jb. 

9.  He  who  takes  a  note  after  it  is  due,  takes  it  subject  to  any 
defence  which  the  maker  can  set  up  against  the  payee  ;  and  when  the 
action  is  in  the  name  of  an  endorser  or  I^earer,  to  entitle  the  defend- 
ant to  set  up  by  way  of  discount,  any  matter  between  him  and  the 
payee,  he  must  prove  that  the  note  was  transferred  after  due,  and  that 
the  matter  of  defence  existed  between  them  at  the  time  of  the  transfer. 
Cain,  Ex'x.  vs.  Spann,  i.,  *258 169 

10.  A  note  dated  January  the  8th,  1838,  with  the  words  "  with 
interest  from  the  first  day  of  January  last," — Held,  that  the  time  from 
which  interest  was  to  be  computed,  was  the  first  day  of  January, 
1837.  Calhoun  vs.  Reynolds,  et  al.,  i.,  *304 198 

11.  The  rule  of  law  is,  that  a  doubt  shall  be  solved  against  him  whose 
business  it  was  to  speak  without  ambiguity lb. 

BOND.     See  Commissioner  in  Equity,  1. 

1.  A  bond  given  under  the  Trover  Act  of  1827,  to  the  sheriff,  is  not 
assignable;  and  the  assignee  of  such  a  bond  cannot  sue,  in  his  own 
name,  on  the  bond.     Smitk  vs.  Cook  &  Norris,  ii.,  *58 385 

2.  A  replevin  bond,  given  to  the  sheriff  by  a  party,  to  prosecute  his 
action  in  replevin  to  judgment,  is  assignable,  and  the  surety  thereto  is 
liable  to  the  same  extent  that  the  principal  would  be.  Keckly  ads. 
Harris,  ii.,  *196 474 

3.  Where  an  action  is  brought  by  a  party  on  a  legal  bond  given 
under  the  Trover  Act  of  1827,  "to  be  answerable  for  all  damages 
which  the  defendant  may  sustain  by  any  illegal  conduct,  in  commen- 
cing and  conducting  the  said  action  of  trover,"  and  the  party  suing  on 
the  said  bond  recovers,  a  new  trial  was  ordered,  unless  the  plaintiff 
would  release  all  the  verdict  except  so  much  as  was  rendered  for  the 
taxed  costs  of  the  former  action.  Vide  Brown  vs.  Spann  3  Hill,  324, 
and  note  thereto.     Dehay  ads.  Ferguson  &  Dangerfield,  ii.,  *228 495 

BOOKS   OF    ACCOMPT. 

1.  Inadmissible  when  entry  made  by  a  person  not  present  at  the  de- 
livery of  the  goods  charged.     Harris  vs.  Caldwell,  ii.,  *133 434 

2.  Inadmissible  to  prove  work  done  by  a  mechanic  out  of  his  shop. 
White  vs.  St.  Philips  Church.,  ii.,  *30G 543 

BREACH  OF  AYARRANTY. 

1.  Where  there  has  been  a  breach  of  the  warranty  of  title  to  a  slave 
and  the  party  purchasing  has  been  deprived  of  the  slave,  by  a  para- 
mount title,  the  measure  of  damages,  for  the  breach  of  such  warranty, 

is  the  price  paid  for  the  slave.   Glover  {Assignee)  vs.  Hutson,  ii.,  *109..  4L7 

[The  right  of  action  is  not  taken  away  by  payment  to  the  warrantee 
of  the  price,  which  the  slave,  after  having  been  taken  from  him,  was 
sold  for  ;  but  the  question  of  recovery  may  be  thereby  diminished.  ^l?ij 

2.  Where  the  unsoundness  of  a  slave  is  known  to  a  purchaser  at 
public  sale,  he  cannot  maintain  an  action  on  the  implied  warranty  of 
soundness. 

3.  Where  the  purchaser  of  a  slave  takes  a  bill  of  sale,  or  written 
warranty,  and  omits  to  insert  a  clause  warranting  the  soundness,  it  is  a 
reasonable  inference  that  no  warranty  of  soundness  was  intended,  'i'he 
presumption  of  warranty,  however,  is  not  conclusively  rebutted,  but  it 
is  a  circumstance  which  should  always  be  submitted  or  presented  to 
the  jury.     Porcher  vs.  Caldwell,  ii.,  *329 558 


688  INDEX. 

CARRIER.     See  Trover,  2,  3;  Private  Ferry,  1. 

CITY  COUNCIL  OF  CHARLESTON. 

1.  The  City  Council  of  Charleston  have  the  right,  under  the  consti- 
tution of  this  State,  of  passing  an  ordinance  to  prevent  shop-keepers, 
(other  than  those  licensed  by  the  city,)  from  keeping  any  spirituous 
liquors,  wines,  «tc.,  in  their  shops  or  in  any  adjacent  room,  Ileissem- 
hritth  ads.  City  Council,  ii.,  *233 498 

CITY   ORDINANCES. 

1.  To  throw  bales  of  cotton  from  the  upper  story  of  a  cotton  ware- 
house, (without  the  usual  rope  and  tackle,)  on  any  of  the  open  spaces 
near  such  warehouses,  where  cotton  is  ordinarily  exposed  for  sale,  is  a 
violation  of  the  City  Ordinance.  City  Council  of  Charleston  vs. 
Elford,  i.,  *234 ' 152 

2.  The  Town  Council  of  Columbia,  under  the  Act  of  Incorporation, 
have  the  power  to  enact  by-laws,  which  shall  be  binding  upon  the 
persons  and  property,  not  only  of  the  citizens  of  the  town,  but  also  of 
non-residents,  when  they  come  within  the  corporate  limits  of  said  town. 
Kennedy  vs.  Sowden,  i.,  *323 210 

COLLOQUIUM,     See  Slander,  5. 

COMMISSIONER  IN  EQUITY. 

Where  a  commissioner  in  equity,  (upon  the  filing  of  a  bill  for  in- 
junction in  his  office)  granted  an  order,  that  a  writ  of  injunction  should 
issue,  upon  the  party's  complying  with  the  rule,  by  giving  bond  and 
approved  security — and  afterwards  took  a  blank  bond,  or  one  that  was 
informal,  and  informed  the  defendants  to  the  equity  proceedings,  that 
he  had  taken  a  bond — whereupon,  they  were  deceived  as  to  its  infor- 
mality, and  were  never  undeceived,  until  upon  a  trial  at  law  upon  said 
bond,  they  found  it  had  been  taken  blank,  and  was  therefore  void.  It 
was  held,  that  the  commissioner  was  liable  upon  his  official  bond,  to 
the  parties  restrained  and  enjoined  by  his  order,  for  the  amount  of  the 
damages  which  they  sustained,  by  reason  of  his  laches  and  neglect. 
The  Treasurers  vs.  Clowney,  ii.,  *510 672 

COMMISSIONER   OF   ROADS. 

1.  The  Boards  of  Commissioners  of  roads  represent  the  people  of 
the  district  or  parish  for  which  they  are  appointed,  and  are  clothed  by 
law  with  a  certain  authority  to  act  for  the  public.  They  are  not, 
however,  a  corporation,  and  have  no  corporate  funds  ;  consequently 
they  are  exempt  from  private  actions  for  neglect  of  duty.     McKenzie 

vs.  Chovin,  i.,  *222 144 

2.  A  single  Commissioner  is  not  liable  for  damages  in  a  private 
action,  for  an  injury  which  may  have  been  the  result  of  want  of 
repairs  in  the  roads,  &c.,  in  his  particular  section lb. 

COMMISSIONER  OF  SPECIAL  BAIL. 

1.  Where  an  issue  has  been  made  up  to  try  the  validity  of  a  debtor's 
Bchedulo,  and  a  day  appointed  by  the  commissioner  of  special  bail,  for 
that  purpose,  and  the  jury  are  in  attendance — the  question  of  post- 
ponement or  continuance,  becomes  a  question  of  discretion,  to  be  ad- 
dressed to  the  commissioner,  who  will  never  grant  the  motion,  unless 
upon  the  jnost  satisfactory  showing. 

2.  A  plaintiff  will  not  l)e  permitted  to  add  new  and  other  specifica- 
tions, to  his  suggestions  of  fraud,  kc,  against  a  debtor's  schedule, 
after  the  issue  lias  been  made  up,  and  the  parties  are  ready  for  trial. 

3.  'I'lie  notes  of  the  commissiuner  of  special  bail,  taken  on  the  ex- 
amination of  a  debtor,  applying  for  his  discharge  under  the  prisoa 
bounds'  Act,  on  his   previous  application  for  discharge  in  the  same 


INDEX.  689 

case,  and  before  the  specifications  of  fraud  were  filed,  is  inadmissible 
evidence  to  go  to  tlie  jury,  on  trial  of  the  validity  of  his  schedule. 
Benthi  vs.  Page,  ii.,  *52 38L 

4.  The  Act  of  1836,  secures  to  creditors  the  right,  either  in  person 
or  by  counsel  to  examine  and  cross-examine  a  party  who  is  about  to 
take  the  benefit  of  the  prison  bounds  or  insolvent  debtors'  Act,  in  the 
presence  of  the  judge  or  commissioner  of  special  bail,  before  whom 
he  may  be  applying.  And  it  is  the  privilege  of  such  person's  counsel, 
(seeking  to  take  the  benefit  of  either  the  prison  bounds  or  insolvent 
debtors'  Act.)  to  ask  the  defendant,  when  on  his  examination,  such 
questions  as  he  may  think  proper,  in  reply  to  such  as  have  been  pro- 
pounded (and  answered)  by  the  adverse  counsel. 

5.  Whenever  the  commissioner  or  judge  permits  a  party  to  amend 
his  schedule,  after  specifications  have  been  filed,  suggesting  frauds, 
<fec.,  it  becomes  a  new  schedule,  and  the  creditor  has  the  same  right  to 
examine  the  party,  as  to  the  amended  part  of  the  schedule,  as  he  had 
to  the  original. 

6.  The  notes  of  evidence  of  the  commissioner  of  special  bail,  taken 
at  a  former  application  of  a  debtor  for  his  discharge,  under  the  prison 
bounds'  Act,  is  not  such  evidence  as  should  be  read  to  the  jury,  on  a 
subsequent  trial,  as  to  the  validity  of  his  schedule.  Such  testimony  is 
incompetent.     Hyait  &  Co.  vs.  Hill,  ii.,  *55 383 

COMPANY. 

1.  A  promise  to  pay  the  "Treasurer  of  the  Abbeville  Silk  Com- 
pany," is  binding  upon  the  subscribers  to  the  stock  of  said  company  ; 
and  an  action  may  be  maintained  against  any  subscriber  who  does  not 
pay  up  his  subscription,  by  any  one  who  may  be  treasurer  at  the  time 
the  action  is  to  be  commenced.     ^;7^  Company  vs.  Anderson,  i.,  *300  195 

COMPARISON   OF   HANDWRITINGS. 

1.  Where  there  is  conflicting  testimony  as  to  the  genuineness  of  a 
signature,  comparison  of  handwriting  is  admissible  as  confirmatory 
evidence,  to  enable  the  jury  to  decide  upon  which  of  the  witnesses 
they  could  most  confide.     Robertson  ^'  Co.  vs.  Millar,  i.,  *120 80 

'2.  A  bundle  of  notes  that  is  admitted  prove  the  genuineness  of  a 
signature,  by  comparison  of  handwriting,  may  be  sent  to  the  jury Ih. 

CONSIDERATION. 

1.  The  plaintiff  lived  with  bis  father  (defendant's  intestate,)  from 
1828,  up  to  the  time  of  his  death,  in  1834,  in  the  capacity  of  an  over- 
seer, for  which  he  was  to  receive  a  certain  portion  of  the  crops  annu- 
ally.    Turner  vs.  Wallace,  i.,  *4S6 •  •  •  •   328 

2.  It  appeared  that  he  never  received  all  of  his  share  of  the  cotton 
crops  before  the  death  of  defendant's  intestate,  and  that  his  father 
acknowledged  to  one  witness  that  he  owed  his  son  more  than  the 
value  of  a  certain  slave  called  Anthony,  whom  he  intended  the  plain- 
tiff should  have,  over  and  above  his  distributive  share  of  his  estate. 
Defendant's  intestate  made  a  will,  but  for  want  of  proper  attestation, 
It  was  not  admitted  to  probate  ;  in  that  he  left  the  boy  Anthony  to 
plaintiff:  Held,  that  there  was  a  sufficient  consideration  to  support 
the  action  of  assumpsit,  and  the  verdict  of  the  jury  for  the  plaintiff 
was  sustained,  and  a  new  trial  refused Ih. 

3.  Defendant  undertook,  in  writing,  to  pay  the  amount  of  a  note,  of 
one  Groner,  to  the  plaintiff,  when  he  should  be  in  possession  of  funds, 
belonging  to  Groner.  Htkl,  that  an  action  could  not  be  supported 
against  the  defendant,  upon  his  undertaking ;  it  being  void  for  want  of 

a  consideration  to  support  the  promise.     Fort  vs.  Foster,  ii.,  *60 386 

4.  A  note  given  in  part  as  compensation,  and  partly  to  compromise 
Vol.  I.— 45 


690  INDEX. 

a  prosecution  for  an  assault  and  battery,  is  not  void,  the  consideration 
being  adequate  to  sustain  the  action.     Banks  vs.  Searles,  ii.,  *356 575 

CONSTABLE. 

1.  A  constable,  in  the  discharge  of  an  official  duty,  is  not  bound  or 
required  bv  law  to  look  beyond  the  process  which  requires  him  to  act. 
If  the  Court  issuing  the  process  has  jurisdiction  over  the  matter  in 
■which  he  is  required  to  act,  it  is  his  duty  to  execute  the  process.  He 
is  neither  permitted  or  required  to  look  behind  it  to  see  if  the  Court 
has  done  its  duty,  and  complied  with  all  that  the  law  requires  as  a 
prerequisite  to  the  issuing  of  the  process. 

2.  A  ministerial  ofiice"r,  whose  duty  it  is  to  execute  a  process,  is 
justifiable  under  that  process,  unless  it  be  void  and  not  merely  void- 
able.    Foster  vs.  Ganii,  ii.,  *335 562 

CONSTITUTIONAL. 

1.  The  first  clause  of  the  Act  to  raise  supplies  for  the  year  1839, 
■which  directs  "  that  a  tax  shall  be  raised  and  paid  into  the  Treasury 
of  this  State,  of  one-eighth  of  one  percent,  upon  all  purchases  and  sales 
of  bullion,  specie,  bank  notes,  bills  of  exchange,  and  stocks,  which  may 
be  made  by  any  brokers  or  agents  in  this  State,  for  or  on  account  of 
any  bank,  company  or  individual  without  the  State;  and  also,  upon  all 
such  purchases  and  sales  as  maybe  made  by  any  such  broker  or  agent 
upon  his  own  account,  or  for  account  of  others  engaged  in  the  same  pur- 
suits," held  to  be  constitutional,  but  prospective  iu  its  words.  Burger, 
Tax  Collector,  ads.  Carter,  ex  rela.,  i.,  *410 267 

2.  By  the  Tax  Act  of  1788,  the  fiscal  year  is  considered  as  begin- 
ning on  the  first  day  of  October  preceding  the  enactment  of  the  Tax 
Act •     lb. 

CONTRACT. 

1.  Where  a  party  to  a  contract  stipulates  to  perform  one  or  more 
things,  and  in  the  event  of  non  performance  of  any  or  all  of  them, 
agrees  to  pay  a  certain  sum,  the  sum  agreed  to  be  paid  will  be  re- 
garded as  a  penalty,  and  not  as  liquidated  damages.  Owens  vs. 
Hodges,  i.,  *106 71 

2.  P'or  the  non-performance  of  a  contract,  the  party  failing  shall  pay 
the  other  for  any  loss  he  may  have  sustained,  and  this  loss  is  the 
measure  of  damages.  If  this  loss  has  been  ascertained  by  the  agree- 
ment of  the  parties,  such  agreement  shall  be  carried  into  effect, 
otherwise  the  jury  will  assess  the  damages  from  a  full  view  of  the  facts 
and  circumstances  of  the  case.     See  Partnership,  2 lb. 

3.  Where  an  overseer  has  been  guilty  of  neglect,  and  some  small 
departure  from  the  terms  of  his  contract,  and  these  are  known  to  his 
emi)loyer.  and  he  is  still  continued  as  her  overseer,  it  will  be  considered 
as  a  waiver  of  them,  as  grounds  to  rescind  the  contract.  Dillard  vs. 
Waltace,  l,  *480 323 

CORONER. 

1.  It  is  a  part  of  the  official  duties  of  a  Coroner,  to  collect  tax 
executions  that  are  placed  in  his  hands,  where  the  Sheriff  of  the  dis- 
trict is  the  tax  collector;  and  his  securities  are  liable  for  his  neglect, 
or  any  default  which  he  may  make  in  not  collecting  them,  &c.  The 
,'^lale  vs.  IrLig,  Adtn'r.,  i.,  *485 327 

COSTS. 

1.  The  custom  of  postponing  the  payment  of  the  Clerk's  costs,  until 
the  termination  of  the  suit,  will  be  adhered  to,  as  indicating  the  proper 
construction  of  the  "J'ee  hill"  of  1839.     Jfi/ans  vs.  Boj/ce,  i.,  *95 64 

2.  Tlie  sureties  to  a  prison  bounds'  bond  are  not  liable  for  the  costs, 
incurred  in  defeating  the  discharge  of  their  principal,  on  his  applica- 


INDEX.  691 

tion  under  the  prison  bounds'  Act.     But  costs  may  be  taxed  against 
the  principal  alone,  in  an  issue  to  try  the  validity  of  his  schedule. 

Baker.  Johnson  d-  Co  vs.  Bu^hnell,  ii.,  *2I 363 

3.  The  sureties  to  a  sheriff's  bond  are  not  liable  for  the  costs,  in- 
curred in  establishinc:  a  nulla  bona  return  against  their  principal. 
Leslie  tV  Calhoun  vs.  Taygart  et  al.,  ii.,  *71 393 

COURTS  MARTIAL. 

1.  By  tlie  Act  of  1833,  courts  martial  have  the  power  to  try  captains 
of  patrol  for  neglect  of  duty  as  patrols,  and  impose  the  fine  of  twenty 
dollars,  specified  in  the  Act  of  1819,  for  the  non-performance  of  patrol 
duty,  and  no  other  court  has  cognizance  of  the  matter.  £x  parte 
Bifft/erf!,  i.,  *69 45 

2.  Courts  military,  or  courts  martial,  are  a  part  of  the  law  of  the  land, 
within  the  meaning  of  the  constitution  oi'  ma;; na,  charta;  and  form  the 
most  appropriate  tribunal  for  all  that  class  of  offences  which  is  created 

.     by  the  patrol  laws,  so  inseparably  connected  with  the  laws  regulating 
the  militia lb. 

3.  A  captain  of  patrol  failing  to  make  a  return,  on  oath,  is  guilty  of 
neglect  of  duty,  and  may  be  returned  to  the  Court  as  such lb. 

4.  The  Act  of  1837,  does  not  confer  any  new  power,  put  is  merely 
declaratory  of  the  meaning  of  the  Act  of  1833.  It  is  more  explicit, 
but  not  more  potential Ih. 

COURT  OF  ORDINARY. 

1.  Where  proceedings  were  instituted  in  the  Court  of  Ordinary,  for 
partition  and  sale  of  real  estate,  and  the  citation  or  summons  issued 
by  the  Ordinary,  with  the  probate  of  service  and  return,  never  has 
been  recorded  or  returned  to  the  Ordinary's  office,  parol  evidence  is 
admissible  to  prove  its  existence,  &c.,  in  an  action  of  trespass  quare 
dausinn, /regit.     Bowling  et  al.,  ads.  Hodge,  ii.,  *209 483 

COVENANT. 

1.  In  the  construction  of  covenants,  the  intention  of  the  parties 
must  govern,  where  that  intention  can  be  ascertained  from  the 
instrument  itself.  Parol  proof  is  not  admissible  to  explain  a  deed 
of  covenant,  where  there  is  no  ambiguity.  Easterhtf  vs.  Heilbron,  i., 
*462 ." 307 

DEBTOR.     See  Bills  of  Exchange,  Notes  and  Bonds,  5 ;  also  Deed,  2,  3. 

DEBTORS'  SCHEDULE.     See    Commissioner  of  Special  Bail,  1,2,3; 
Insolvent  Debtors'  and  Pi-ison  Bounds'  Acts, 

DEED. 

1.  A  deed  to  a  concubine  to  procure  future  cohabitation  is  void  ; 
also,  a  deed  for  services  rendered  by  a  kept  mistress  is  void,  if  the 
grantor  be  in  debt  at  the  time  of  the  conveyance,  or  continues  to 
retain  possession  of  the  property  from  the  date  of  the  deed  until  he 
becomes  insolvent.     Sherman  &  Dcbriihl  vs.  Barrett,  i.,  *i47 97 

2.  Where  a  debtor  had  conveyed  to  bis  son-in-law  a  number  of 
houses  and  lots  in  the  town  of  Columbia,  and  a  number  of  slaves, 
for  which  he  is  said  to  have  received  a  large  sum  of  money,  and  at  the 
date  of  the  conveyance  was  very  much  in  debt;  on  the  trial  of  the 
validity  of  his  schedule,  it  was  held  that  the  onvs  lay  on  the  defendant, 

to  account  for  the  proceeds  of  the  sale  of  this  property lb 

3.  W'hen  a  debtor  alleges  that  the  proceeds  of  a  sale  of  property 
made  by  him,  has  been  gambled  away,  the  question  of  his  gaming  may 

be  sulimitted  to  the  jury,  and  their  finding  will  not  be  disturbed lb. 

4.  A  deed  executed  by  a  debtor,  with  the  view  to  defeat,  delay,  or 
hinder  a  creditor,  is  void,     Jones  vs.  Crawjbrd,  L,  *373 243 


692  INDEX. 

DEED  OF  GIFT. 

Where  a  deed  of  gift  from  a  parent  to  his  daughter,  (the  plaintiff)  of 
a  negro,  contained  among  other  things,  after  appointing  trustees,  the 
following  provisoes,  "  Provided  ahva^'s,  and  these  presents  are  upon 
this  special  trust  and  confidence,  and  upon  this  express  condition,  that 
tlie  said  trustees,  their  executors,  or  administrators,  shall  and  do  jier- 
niit  and  suffer  me,  the  said  G.  De  M.  to  use,  keep  and  enjoy  the  pro- 
fits of  the  said  negro  Ben,  during  my  natural  life,  without  paying  or 
yielding  any  for  the  same  or  in  any  respect  thereof.  Provided  also, 
tliat  if  I  should  remove  the  said  negro  I3en  out  of  my  possession,  or 
Ihe  said  negro  should  be  removed  out  of  my  possession  by  any  means 
whatsoever,  then  the  use  reserved  shall  terminate,  and  the  said  trustees, 
or  either  of  them,  shall  take  the  negro  Ben  into  their  possession,  and 
apply  the  profits  arising  from  him  to  the  use  of  my  said  daughter,  until 
she  arrives  at  the  age  of  twenty-one  years,  or  marries ;  at  which  time 
the  said  negro  Ben  to  be  delivered  up  to  her,  her  heirs,  executors, 
administrators  or  assigns." 

It  was  held,  1.  That  the  true  construction  of  the  deed  was,  that  it 
Avas  a  conveyance  to  trustees  for  the  use  of  G.  De  M.  for  life,  with  a 
condition  forfeiting  his  estate  if  he  should  part  with  the  possession  of 
the  slave,  or  any  one  should  take  him  out  of  his  possession  ;  and  in 
such  case,  the  profits  were  to  be  applied  to  the  use  and  benefit  of  plain- 
tiff", until  her  marriage  or  full  age  ;  and  if  De  M.  should  retain  posses- 
sion until  his  death,  then  the  possession  to  be  delivered  to  plaintiff. 

2.  That  De  Millen  had  a  life  estate  in  said  negro,  which  might  be 
the  subject  of  bargain  and  sale  under  execution. 

3.  That  the  reservation  of  the  use  of  the  chattel  to  the  grantor  for 
life,  made  the  whole  deed  fraudulent  and  void  against  creditors.  De 
Millen  vs.  McAUlley,  ii.,  *499 684 

DEED  OF  ASSIGNMENT.     See  Attorney,  1,  2. 

DEMURRER. 

1.  Where  a  general  demurrer  has  been  overruled,  the  adverse  party 
have  the  right  to  enter  up  judgment  on  the  matter  in  controversy, 
unless  the  demurring  party  obtain  special  leave  to  plead  over  at  the 
time  the  demurrer  is  overruled.  Price  vs.  Price,  i.,  *291.  (Vide,  also, 
/VciVe  Facias,  3.) 190 

2.  Where  a  sheriff  has  been  sued  on  his  official  bond,  and  to  the 
plea  of  performance,  there  is  a  replication,  by  plaiutifl''s  assigning  as  a 
breach,  "  that  the  sheriff,  during  his  term  of  office,  (to  wit,)  on  the  1st 
January,  lH21,  and  on  divers  days  between  that  day  and  the  25th 
January,  1817,  had  and  received,  for  and  on  account  of  the  plaintiff, 
»tc.,  a  large  sum  of  money,  to  wit :  the  sum  of  two  thousand  three 
hundred  and  ninety-six  dollars  and  ninety-two  cents,  and  that  the 
same  was  not  paid  over."  To  this  replication,  there  were  special  de- 
murrers. In  the  Appeal  Court,  the  demurrers  were  overruled,  and 
the  replication  was  sustained.     Treasurers  \'s.  Oswald  et  al.,  ii.,  ^lio.  443 

3.  Whore  there  has  been  a  general  demurrer  to  a  plea,  and  a  join- 
der in  demurrer,  and  the  demurrer  has  been  sustained,  leave  will  not 

be  given  to  plead  over.  Moore,  assignee,  vs.  Burhage,  ii.,  *168 457 

4.  Ill  an  action  of  debt,  on  a  sheriff's  bond,  where  the  defendants 
pleaded  performance,  "  and  the  breach  assigned  by  the  plaintiff  was, 
that  it  was  the  duty  of  the  sheriff  to  collect  and  pay  over  all  tax  exe- 
cutions, which  might  be  lodged,  and  that  on  the  first  day  of  June, 
1H35,  there  wen;  tax  executions  to  the  amount  of  one  thousand  seven 
hundred  and  thirty-nine  dollars  and  seventy-eight  cents  lodged  in  his 
office,  and  that  he  did  not  collect  and  pay  them  over."  To  the  plea  of 
performance,  there  was  a  replication  by  the  plaintiff,  and  the  defend- 


INDEX.  69:5 

ants  demurred  specially,  for  the  cause  that  the  tax  executions  makinj; 
the  atrc:regate.  were  not  specified.  'J'he  demurrer  was  sustained,  and 
the  Appeal  Court  refused  to  reverse  the  decision.  Tim  Treasurer  vs. 
Rives,  sheriff,  ii.,  *207 4«2 

DEVISE. 

1.  AVhere  a  testator,  by  his  last  will,  devised  certain  real  estate  to 
the  plaintiffs,  as  trustees  for  his  daughter,  (therein  named,)  reserving 
the  "  sawing  timber,"  growing-  thereon.  It  was  held  to  be  a  good  re- 
servation, and  sufficiently  explicit  to  be    understood.     Terrell,  et  al., 

vs.  EnsterUng,  ii.,  *24 , . .  . .   365 

2.  Where  a  testator  by  his  last  will,  used  the  term  (in  relation  to  a 
bequest  of  slaves,)  "  I  will  and  bequeath  Sarah,  and  alt  her  increase," — 
the  term  all  her  increase,  was  held  to  refer  only  to  such  children  of 
the  slave  Sarah  as  were  born  after  the  making  the  will.  Donald  vs. 
Dendey,  ii.  *123 427 

DISCONTINUANCE.     See   Variance,  1,  2. 

DISCOUNT. 

1.  Discount  cannot  be  offered  in  evidence  under  the  general  issue, 
or  considered  as  payment;  and  the  defendant  cannot  be  permitted, 
without  notice,  to  avail  himself  of  a  separate  cause  of  action,  which 
the  plaintiff  cannot  be  prepared  to  resist.     Biice  vs.  Henaf/an,  i,,  *28.     18 

2.  Where  the  plaintiff's  demand  has  been  reduced  by  a  discount 
below  the  sum.  pro.  jurisdiction,  the  practice  is  to  give  a  decree  for 
the  balance.    Owners  of  iSteam  Boat  St.  Matthews  vs.  Mordecai,  i,,  *294  192 

DISTRESS  WARRANT.     See  Landlord  and  Tenant,  2. 

1.  Goods  distrained  by  a  landlord  for  rent  in  arrear,  and  replevied 
by  the  tenant,  (although  they  may  be  removed  to  other  premises)  are 
liable  first  to  the  lien  of  the  lietorno  habendo  cumji.ja.   Harris,  Adnir, 

vs.  Clayton,  i.,  *  1 94 127 

2.  The  lien  of  a  distress  warrant  upon  goods  replevied,  is  never  lost; 
neither  does  it  give  place  to  any  other.  The  sale  of  the  goods  is 
merely  suspended,  in  order  to  try  the  question  whether  the  rent  is 
truly  in  arrear lb. 

DOCKET. 

I.  These  were  actions  of  debt,  on  the  official  bond  of  Easterling,  de- 
ceased, late  sheriff  of  Georgetown  district.  The  writs  were  issued  to 
Spring  Term,  1836,  and  the  actions  were  prosecuted  for  the  benefit  of 
one  Taylor  of  New  York.  On  the  20th  April,  1836,  after  the  com- 
Diencement  of  these  suits,  C.  &  C,  who  were  judgment  creditors  of 
Easterling,  filed  a  bill  in  the  Court  of  Equity  for  Geor£retown  districl:, 
against  his  executor  for  an  account.  On  the  27th  of  the  same  month, 
the  Court  made  an  order  for  the  creditors  to  tile  statements  of  their 
claims,  on  oath,  by  the  1st  January,  1837,  with  the  Commissioner;  and 
another  order,  enjoining  them  from  proceeding  at  law  against  the 
executor.  I  he  time  for  tiling  claims  was  afterwards  extended  to 
January,  1838.  In  January,  1838,  the  Commissioner  made  a  report 
of  claims  which  had  been  filed  in  his  otlice  against  Easterling,  in  his 
official  capacity  only  ;  and  the  Court  thereupon  made  a  decree,  that 
the  sureties  pay  the  amount  of  said  claims  to  the  Commissioner,  and 
that  execution  issue  against  them  accordingly  ;  and  further,  that  the 
creditors  of  the  sheriff,  who  had  failed  to  file  their  claims,  be  perpetu- 
ally enjoined  from  pursuing  the  same  against  the  sureties.  Taylor's 
claim  was  not  filed  in  the  Commissioner's  office,  and,  at  Fall  Term, 
18B8,  these  cases,  which  had  been  on  the  writs  of  inquiry  docket, 
since  Pall  Term.  1836,  were  struck  off.  Notice  was  afterwards  given 
to  the  defendants,  that  a  motion  would  be  made  to  restore   them  ; 


694.  INDEX. 

and  at  Spring  Term,  1838,  such  a  motion  was  maJe  and  affidavits 
offered  on  both  sides.  After  hearing-  counsel,  the  Court  made  ao 
order  to  restore  them  to  the  docket.  The  defendants  gave  notice  of 
an  appeal  from  this  order,  but  did  not  prosecute  it.  On  the  call  of 
these  cases  for  trial,  at  Spring  Term,  1840,  the  defendants  again 
moved  to  strike  them  from  the  docket,  and  his  Honor  Judge  Evans, 
presiding,  granted  the  motion.  Held,  that  it  was  an  improper  order 
in  the  Court  below,  and  the  cases  were  ordered  to  be  restored  to  the 
docket.     The  State  of  Souih  Carolina  vs.  Wulermaii  et  al.,  u.,*205....  480 

DOMESTIC  ATTACHMENT. 

1.  If  the  proceedings  of  a  justice,  from  whom  a  M'rit  of  Domestic 
Attachment  issued,  shows  upon  its  face,  that  the  justice  had  no 
authority  to  grant  the  attachment,  or  if  it  fail  to  show  that  he  had, 
then  no  judgment  could  be  given  upon  it,  either  by  himself  or  the 
Circuit  Court,  but  the  whole  is  an  absolute  nullity ;  and  it  is  of  no 
consequence  in  what  way  the  defect  is  brought  to  the  view  of  the 
Court,  or  at  whose  motion  it  is  quashed.     Devall  vs.  Taylor,  i.,  *460.  396 

DOWER. 

1.  Want  of  notice,  is  no  ground  to  oppose  the  confirmation  of  the 
return  of  the  Commissioners  to  a  writ  of  Admeasurement  of  Dower. 
Where  the  return  is  perfect,  and  exactly  in  conformance  with  legal 
rules,  and  is  verified  by  the  oath  of  all  the  Commissioners,  it  is  entitled 
to  full  credit,  rather  than  the  ex  parte  affidavit  of  two  of  them.   Beaty 

vs.  Emrst,  i.,  31 20 

2.  Widow's  claim  of  dower  extends  to  all  the  lands  of  which  her 
husband  was  seized  during  coverture  :  and  the  alienation  of  the  hus- 
band, during  his  life,  is  an  immaterial  circumstance,  as  to  her  right  of 
dower.  The  very  definition  of  dower,  of  course  embraces  the  whole 
right,  whether  in  lands  aliened  or  in  those  of  which  the  husband  died 
possessed. 

3  'I'he  acceptance  of  the  provisions  under  the  statute,  by  a  widow, 
is  a  legal  bar  to  her  rights  of  dower;  and  such  acceptance  maybe 
pleadiMl  at  law  as  a  defence  to  the  demand  of  dower. 

4.  Where  a  widow  is  found  purchasing  part  of  the  real  estate  of  her 
deceased  husband, joining  with  the  other  heirs  at  law  in  the  title  deeds 
for  other  portions  of  the  land,  and  receiving  part  of  the  money  for 
which  the  land  was  sold,  these  are  such  circumstances  as  go  to  show 
her  election  and  acceptance  of  the  statutory  provision  of  dower;  and 
where  the  question  of  election  has  been  fairly  submitted,  (under  the' 
circumstances,)  to  the  jury,  and  they  have  decided,  the  Court  will  not 
disturb  their  finding.     Avunt  vs.  Ruhertson,  ii.,  *215 

DUELLING. 

L  Any  agreement  to  fight  with  loaded  pistols,  and  actually  fighting 
in  pursuance,  constitutes  a  duel  under  the  Act.  And  it  does  not 
dcjjend  upon  the  time  when  the  agreement  was  made,  but  upon  the 
fact  (.f  thu  agreement.     Jfrio/f  <(•  Pafler.v>n  ads.  The  Stale,  i.,  *126. . .      83 

2.  'I'he  circumstances  attending  a  fighting  with  pistols,  and  the 
intention  of  the  parties,  are  questions  of  fact  to  be  left  to  the  jury Ih. 

ELECTION. 

1.  It  is  no  ground  to  arrest  the  election  of  a  Sheriff,  and  to  eject 
from  office,  because  the  election  at  one  of  the  polls  in  the  district  was 
managed  by  one  mauiigcr,  assisted  by  anotlier  appointed  by  the 
Senator,  under  tlie  Act  of  18-18,  p.  39,  without  any  objection  being 
made  to  liie  appointment  on  the  part  of  the  representatives.  The 
State  ex  rel.  Donaldson  vs.  Townisend,  i.,  *495 336 


INDEX.  695 

EVICTION. 

1.  In  case  of  eviction,  by  title  paramount,  the  measure  of  damages 
is  the  price  paid  for  the  land,  witli  interest,  reareson  vs.  Davis,  i., 
*37 24 

2.  Consequential  damages  cannot  be  recovered  for  any  inconvenience 
or  loss  which  the  vendee  may  sustain  in  his  improvements,  however 
expensive  or  permanent.     {The  rase  of  Jkiiniiig,  Ex'or,  vs.  Withers, 

(3  Brev.  Rep.  458, )  considered  and  coiijinjicd.) lb. 

EVIDENCE.     See  Trespass  to  try  Title,  8,  10,  11,  12  ;  Trespass  4,  5. 

1.  Parol  evidence  is  inadmissible  to  expUiiii  a  written  contract,  or 
to  vary  it,  unless  where  there  is  ambiguity.     King  t&  Co.  vs.  Coldimj, 

1.,  *133 88 

2.  The  docket  of  the  Court  in  the  svm.  pro.  jurisdiction,  witli  this 
entry  :  "  Alex.  Gregg  vs.  R.  J.  Gregg — Decree  for  FlainfiJ)',"  is  not  such 
evidence  of  a  judgment,  as  will  enable  a  purchaser  of  land  at  sheriff's 
sale,  to  recover  in  an  action  of  trespass  to  try  titles.    Evans  vs.  Hinds, 

i.,  *490 - 332 

3.  The  declarations  of  a  tenant,  after  he  has  aliened  his  right  and 
interest  in  the  land,  is  inadmissible  evidence  to  prove  where  a  line 
ran,  or  where  a  tree  stood,     Fddcr  vs.  Bonneft,  ii.,  *44 376 

4.  Parol  evidence  is  only  admissible  to  explain  a  latent  ambiguity. 
If  a  testator  devise  his  estate  to  a  person,  or  class  of  persons,  by  name 
or  description,  and  it  should  turn  out  that  there  is  no  person  of  the 
name,  or  that  will  answer  the  description,  parol  testimony  may  be  in- 
troduced, to  explain  to  whom  the  testator  intended  the  becpicst  to  be 
applied  ;  for  there  is  a  latent  ambiguity,  which,  if  unexplained,  would 
render  the  will  inoperative.  Whatever  is  necessary  to  explain  the 
ambiguity  of  the  legatee,  is  equally  applicable  to  an  ambiguity  in  the 
description  of  the  legacy  itself.     Domdd  vs.  Dendg,  ii.,  *123 427 

5.  Where  a  shop-keeper,  himself,  sold  and  delivered  goods  to  a  party 
and  during  the  same  day,  the  entries  were  made  by  another  person, 
who  occasionally  acted  as  clerk  for  him,  it  was  held,  that  the  book 
was  no  evidence  of  the  debt,  and  that  the  evidence  was  inadmissible. 
Vide  Hurts  vs.  Keufville  in  a  note,  S.  P.  Harris  vs   Caldwell,  ii.,  *133.   434 

6.  In  an  action  for  assault  and  battery,  the  preceding  words  or  im- 
putations of  the  same  kind  as  those  which  immediately  led  to  the  as- 
sault, if  previously  communicated  to  the  defendant,  may  be  offered  in 
evidence,  by  way  of  mitigation  of  damages. 

7.  The  inducement  to  the  transaction,  and  all  such  particulars,  in 
the  conduct  of  either  party,  leading  to  the  final  act.  or  forming  part  of 
it,  as  seemed  to  show  in  what  degree  blame  attached  to  them  severally  ; 
and  such  acts  as  would  aid  the  jury  in  determining  the  just  pleasure 

of  damages,  would  be  admissible  evidence.  Dean  vs.  Horton,  ii.,  147...  444 

8.  Where  an  unauthorized  inquiry  has  been  instituted  in  the  Court 
of  Chancery,  and  so  declared  by  the  Court  itself,  the  de])Osition  of  a 
witness  who  deposed  in  the  chancery  case,  and  who  has  since  died, 
will  not  be  received  by  a  Court  of  law  in  a  subsequent  cause  between 
the  same  parties.     Com'r  in  Equity  Mc  iHiorler,  ii.,  254 5L0 

9.  The  books  of  a  tradesman  or  mechanic  are  admissible  in  evidence 
only  to  prove  the  performance  and  delivery  of  the  work  done  within 
the  mechanic's  shop.  Where  the  work  is  done  outside  of  his  shop,  or 
on  the  premises  of  the  party  charged,  such  as  building  or  repairing  a 
house,  or  any  other  fixtures,  there  can  be  no  necessity  for  books,  for 
the  work  is  apparent  and  palpable.  St.  Philip's  Church,  ads. 
White,  ii.,  *306 543 

EXECUTION. 

1.  Where  there  are  several  executions  in  the  sheriff's  office  against 


696  INDEX. 

the  same  defendant,  of  different  dates,  the  defendant  may,  on  paying 
money  to  the  sheriff,  direct  its  application,  and  the  sheriff,  on  rule, 
will  be  protected.     Adams  vs.  Crimnr/er,  i.,  309 201 

2.  A  receipt  from  the  Sheriff,  when  money  has  been  paid  on  a  junior 
execution,  is  a  discharge  to  the  defendant  pro  tanto  on  the  execution.    Ih. 

3.  The  sheriff  sold  a  tract  of  land  under  execution,  which  was  pur- 
chased by  a  third  person,  against  whom  the  owner  subsequently  filed 
a  bill  in  chancery,  to  set  aside  the  sale,  on  the  ground  that  the 
execution  was  satisfied.  The  Chancellor,  upon  examining  the  case, 
thought  the  fact  of  satisfaction  was  proved,  and  that  the  purchase  showed 
it ;  he,  however,  referred  it  to  the  commissioner,  to  inquire  as  to  that 
fact,  and  decreed,  if  found  for  the  complainant,  that  the  sale  and  deed 
should  be  set  aside  ;  otherwise,  that  it  should  stand.  Subsequently, 
the  parties  compromised,  and  the  purchaser's  money  and  costs  were 
refunded,  and  he,  by  the  direction  of  the  owner,  J.  T.  McJunkin, 
conveyed  the  land  to  J.  A.  McJunkin.     It  was  held, 

That  the  Chancellor's  decree  was  provisional. 
That  the  sherifl''s  sale  and  deed  still  subsisted. 
That  the  leiral  title  was  still  in  the  alienee  of  J.  A.  McJunkin. 
Gist  et  al.  vs.  McJunkin  et  al,  i.,  *342 223 

4.  That  a  sheriff's  sale,  under  an  execution  purporting  to  be 
satisfied,  when  the  sheriff  has  in  his  office,  at  the  time  of  the  sale,  a 
subsisting  execution,  is  not  void ;  and  the  plaintiff  in  the  subsisting 
execution  is  not  entitled  to  have  the  laud  re-sold,  but  is  only  entitled 

to  the  proceeds  arising  out  of  the  sale lb. 

EXECUTION,  OR  MESNE  PROCESS.     See  Prisoner,  1. 

EXECUTORS  AND  ADMINISTRATORS. 

1.  In  a  suit  against  the  securities  of  an  administrator  upon  their 
bond,  where  a  decree  of  the  Ordinary  against  the  administrator  is 
offered  in  evidence,  it  is  competent  for  the  securities  to  show  that  the 
administrator,  at  the  time  of  the  decree,  had  removed  from  this  State 
and  was  resident  in  another;  and  therefore  was  not  subject  to  the 
jurisdiction  of  the  Court.     Buckner,  Ordinary,  vs.  Archer  et  al.,  i ,  *85     57 

2.  In  such  case,  it  is  not  competent  for  the  Ordinary  to  make  the 
absent  administrator  a  party  by  publication  in  the  Gazette,  and  the 
the  securities  may  show  that  the  Ordinary  proceeded  in  that  form, 
although  the  decree  recites  that  the  administrator  was  duly  cited 
and  made  default.  Such  recital  is  not  conclusive.  See  Lesterjette, 
Ordinary,  vs.  The  Ex'ors  of  Ford,  in  note lb. 

3.  A  decree  in  the  Court  of  Equity  against  an  administrator,  with 
the  return  of  "  miUa  bona"  on  the  j^.  J'a.,  (issued  on  the  decree,)  is 
prima  farie  evidence  against  the  surety  on  the  administration  bond  ; 
and  it  is  not  necessary  after  such  proceedings  to  have  a  decree  of  the 
Court  of  Ordinary  before  commencing  actions  on  the  bond.    Ordinary 

vs.  Carlisle,  i.,  *100 67 

4.  A  surety  of  an  administratrix,  (whose  intestate  was  the  adminis- 
tratrix of  an  estate  in  her  lifetime,)  is  not  absolutely  bound  by  a 
decree  in  the  Court  of  Equity  against  his  principal,  for  the  devastavit 
committed  on  the  estate  of  Vhich  his  principal's  intestate  was  the 
administratrix,  where  he  was  not  made  a  party  to  the  proceedings; 
and  he  is  not  conclud(Ml  from  showing  that  his  principal  received 
notiiing  of  the  assets  with  which  she  is  charged lb. 

5.  Tlio  sureties  to  an  administration  bond  are  not  liable  to  the 
heirs  at  law  f(u-  the  rent  of  land  belonging  to  the  estate  of  which  their 
principal  was  the  administrator  under  special  circumstances.  Allen, 
Ordinary,  vs.  Bruion  d'-  llarUee,  i.,  *249 162 


INDEX.  697 

FEE  BILL. 

1.  By  the  fee  bill  of  1840,  the  ten  times  the  excess  which  the  ofTicet 
is  made  liable  to  forfeit  to  the  party  injured,  is  •'  to  be  recovered  by 
suit  in  the  Court  of  Common  Pleas,  in  which  no  imparlance  shall  be 
allowed  ;  or  by  rule  in  the  case  of  sheriffs,  or  by  sum.  pro.  in  the  cases 
of  Magistrates  and  Constables,  where  the  penalty  may  not  exceed 
$20."  By  the  fee  bill  of  1839,  (of  which  that  of  1840  is  amendatory,  so 
far  as  relates  to  sheriff,)  the  ten  times  the  excess  is  to  be  recovered 
by  suit  in  the  Court  of  Common  Pleas,  in  which  no  imparlance  shall 
be  allowed,  or  by  rule  when  the  penalty  may  not  exceed  twenty  dol- 
lars. Putting  these  two  Acts  together — it  was  held,  that  the  qualifi- 
cation in  the  Act  of  1840,  when  the  penalty  may  not  exceed  .^20,  as 
applying  to  the  rule  in  the  case  of  sheriffs,  and  to  the  sum.  pro.  in  the 
case  of  ^Magistrates  and  Constables.  Boss,  Sheriff,  ads.  Gavin  et  al., 
ii.,  *275 524 

FEME  COVERT. 

1.  A  feme  covert  cannot  be  made  a  feme  sole  carrier  under  the 
custom,  or  under  the  Acts  of  the  Legislature  of  1823  and  '24.     Ewart 

vs.  Nagel,  i.,  *50 32 

2.  The  privilege  of  a  feme  sole  trader  does  not  reach  beyond  buying 
and  selling  merchandise.     {S.  P.\  Hill,  429) lb. 

3.  The  will  of  a  feme  covert  is  void  at  law,  and  the  Court  of  Com- 
mon Pleas,  acting  as  a  Court  of  Appeals  from  the  Ordinary,  cannot 
entertain  the  question  of  executing  a  will  under  a  deed  of  settlement. 
This  is  a  question  purely  for  the  Court  of  Equity.     Shaw  vs.  Dawsev, 

i.,  *247 :.... 161 

FEIGNED  ISSUE.     See  Garnishee,  4,  5. 

FORFEITURE. 

1.  After  a  Bank  has  suspended  specie  payments,  its  charter  (in  con- 
templation of  law,)  is  forfeited ;  but  where,  after  its  charter  was 
thus  forfeited,  it  continued  to  exist  de  facio,  and  exercised  all  the 
privileges  and  immunities  previously  granted  by  the  Legislature,  and 
the  Legislature  afterwards  by  subsequent  legislation,  declared  that  the 
corporation  shall  exist.  It  was  held  to  be  a  waiver  by  the  State  of 
previous  forfeiture.     The  State  vs.  The  Bank  of  Charleston,  ii.,  *439. .   627 

FORGERY. 

1.  The  words  warrant  and  order,  in  an  indictment  for  forgery, 
describing  the  instrument  forged,  are  synonymous  with  warrant  or 
order.     The  State  vs.  Jones,  i.,  *236 153 

2.  An  instrument  signed  by  a  party,  is,  in  legal  parlance,  the  paper 
writing  of  such  party.  It  is  his  signature  which  gives  it  that  char- 
acter, and  not  the  body  of  the  instrument Ih. 

3.  Every  indictment  for  forgery  must  set  forth  the  instrument 
charged  as  fictitious,  in  words  and  figures,  so  that  the  Court  may  be 
able  to  judge  from  the  record,  whether  it  is  an  instrument  in  respect 

of  which  forgery  can  be  committed lb. 

4.  If  an  indictment  charges  the  forgery  to  be  with  intent  to  defraud 
an  incorporated  bank,  and  its  corporate  name  is  set  forth,  it  is  suffi- 
cient if  it  appears  to  be  an  incorporate  bank  within  this  State lb, 

5.  The  cashier  is  a  mere  officer  representing  the  bank,  and  a  check 
drawn  upon  him  as  such  is  drawn  upon  the  bank ;  therefore,  a  fraud 
committed  on  him,  is  a  fraud  upon  the  bank lb. 

6.  The  same  indictment  set  forth  that  the  paper  writing,  alleged  to 
be  forged,  purported  to  be  a  warrant  and  order  for  the  payment  of 
money,  and  to  have  been  drawn  by  one  Tristram  Tupper.  It  then  set 
out  the  instrument  in  hcec  verba,  from  which  it  appeared  that  it  was 


698  INDEX. 

signed  T.  Tupper,  and  averred  that  the  prisoner  made  it  with  the  in- 
tention to  defraud  Tristram  Tnpper  :  Held,  that  there  was  no  variance, 
and  that  the  count  was  well  framed 153 

7.  If  an  instrument  from  its  face  purports  to  have  been  made  in 
Charleston,  S.  C,  and  it  is  proved  the  prisoner  at  its  date  was  there, 
and  had  the  same  in  his  possession,  it  is  sufficient  evidence  to  show 
that  it  was  made  there lb. 

8.  If  a  prisoner  is  guilty  in  fact  of  forgery,  his  conviction  may  be 
sustained,  either  under  the  Acts  of  1736-7,  the  Act  of  1801,  or  at 
common  law lb. 

FRAUDS  AND  STATUTE  OF  FRAUDS. 

1.  The  parol  undertaking  of  a  third  person  to  pay  for  articles  pur- 
chased by  another,  is  void,  by  the  Statute  of  Frauds.  Richardson  vs. 
Richardson,  i.,  *280 183 

GARNISHEE. 

1.  To  enable  a  garnishee  in  attachment  to  retain  the  goods  in  his 
hands,  it  is  not  necessary  that  he  should  prove  himself  to  be  a  creditor 
entitled  to  bring  an  action  ;  it  is  enough  if  he  establishes  a  lien,  even 
for  outstanding  liabilities  incurred  for  the  defendant,  and  absent 
debtor,  which  creates  a  special  property,  until  discharged,  and  over- 
reaches the  claim  of  the  attaching  creditor.  Bank  of  the  State  vs. 
Levy,  i.,  *431 283 

2.  An  agent  here,  who,  for  a  commission,  negotiates  exchanges  for 
a  house  in  New  York,  who  buys  bills  on  Europe  for  them,  and  to  raise 
the  funds  for  that  purpose,  draws  and  sells  bills  upon  them  at  home 
for  corresponding  amounts,  some  of  which  they  accept,  and  others  do 
not,  and  the  bills  are  protested,  such  agent,  on  the  failure  of  the  prin- 
cipal house,  has  a  lien  on  any  funds  or  securities  which  come  to  his 
hands  for  his  principals,  to  secure  himself  against  these  outstanding 
liabilities,  although  in  fact  he  may  not  have  paid  any  of  the  bills lb. 

3.  And  there  is  no  difference  between  bills  accepted  and  not  paid, 
and  bills  not  accepted.  The  lien  extends  to  all  equally.  Nor  does  it 
make  any  difference,  that  the  funds  and  securities  come  to  hand  after 
the  liability  is  incurred,  and  therefore  were  not  looked  to  as  an  indem- 
nity at  the  time lb. 

4.  The  right  of  property  in  goods  attached,  if  claimed  by  the  gar- 
nishee, or  by  another,  may  be  tried  in  the  form  of  a  feigned  issue, 
wherein  the  garnishee  or  other  claimant  is  plaintiff,  as  well  as  in  any 
other  form.     GohJthivaite  t&  Evans  vs.  Bryant,  i.,  *451 299 

5.  Where  a  third  person,  not  served  as  a  garnishee,  lays  claim  to 
the  goods  attached,  and  is  allowed  to  come  in  with  the  privilege  of  a 
garnishee,  and  to  make  up  a  feigned  issue  as  plaintiff,  to  try  the  right 
of  property,  whereby  he  gains  possession  of  the  goods,  if  he  afterwards 
discontinue,  and  withdraw  the  record,  he  cannot  then  require  a  sug- 
gestion to  be  filed  by  the  jilaintiff  in  attachment,  who  is  entitled  to 
judgment  against  him  as  a  defaulting  garnishee lb. 

GUARANTY,     See  Bills  of  Exchange,  Notes  and  Bonds,  4. 

GOAL  FEES.     See  Prisoner,  1. 

HAWKERS  AND  PEDLARS. 

1.  Books  were  sent  up  from  Charleston  to  Columbia,  and  consigned 
to  Folock.  Solomon  &  Co.,  merchants  and  auctioneers  in  Columbia, 
by  whom  the  freight  from  Charleston  was  paid,  and  sold  by  them,  and 
the  defendant,  at  auction  and  at  private  sale,  for  the  use  and  benefit 
of  the  defendant :  llehl,  not  to  come  within  the  purview  of  the  Act  of 
Assembly  for  Hawking  and  Peddling.     The  State  vs.  Belcher,  i.,  *40.     25 

2.  A  hawker  and  pedlar  is  one  who  travels  from  town  to  town,  or 


ri 


INDEX.  699 

from  plantation  to  plantation,  carrying  to  sell,  or  exposing  to  sale, 
goods,  wares  and  merchandise  ;  but  a  single  shipment  of  goods,  regu- 
larly consigned  to  Polock,  Solomon  &  Co.,  by  the  defendant,  and  sold 
by  himself  or  them,  for  his  use  and  beneflt,  is  not  hawking  and  peddling 

within  the  meaning  of  the  Act f  5 

3.  The  defendent,  a  non-resident  of  this  State,  did  sell  goods,  wares 
and  merchandise,  in  a  house  in  the  town  of  Columbia,  and  is  therefore, 
when  properly  indicted  and  convicted,  liable  to  the  penalties  of  the 
Act  of  Assembly  of  1835,  page  6.     (Per  O'Neall,  J.) lb. 

HOLDER. 

1.  Holder  is  a  word  of  the  same  import  as  bearer,  and  both  may 
acquire  a  title  by  lawful  delivery  according  to  the  terms  of  the  contract. 
Putnam  vs.  Crymes  d;  Owlngs,  i.,  *9 6 

HUSBAND  AND  WIFE.     See  Bailee,  3. 

1.  "Where  an  action  of  assumpsit  is  brought  in  the  name  of  husband 
and  wife  jointly,  and  the  declaration  alleges  the  promise  to  have 
been  made  jointly  without  stating  what  interest  the  wife  had,  or  any 
reason  is  shown  why  she  should  have  been  joined,  it  is  such  a  defect 
as  cannot  be  cured  by  the  verdict,  and  which  is  fatal  upon  a  motion  in 
arrest  of  judgment.  (1  Chitty.  PI.  20;  2  Wm.  Bl.  1236  ;  2  Caines' 
Hep.  221 ;  2  Burr.  279.)     Creiger  et  nx.  ads.  Smiih,  ii.,  *140,  279.. . ..   526 

IMPLIED  WARRANTY.     See  Breach  of  Warrantij,  2,  3. 

INCORPORATIONS.     See  City  Ordinances,  2. 

INDEMNITY.     See  Indorser,  2. 

INDICTMENT. 

1.  It  is  not  necessary,  in  an  indictment  under  the  Act  of  17.^4,  (P. 
L.  33.5-6,)  for  aiding  a  slave  in  running  away  and  departing  from  his 
master's  employment,  to  set  out  and  aver  the  means  used  in  aiding  the 
slave  to  run  away.  It  is  sufficient,  for  all  purposes,  if  the  indictment 
charge  the  offence  in  the  words  of  the  Act.  It  must  definitely  and 
directly  charge  the  defendant  with  aiding  the  slave  in  running  away, 
so  that  his  master  has  been  deprived  of  his  services  ;  the  name  of  the 
slave,  and  the  name  of  his  master ;  the  time  and  place,  &c.  State  vs. 
Blease,  i.,  *472 316 

2.  Id  an  indictment  for  inveigling,  &c.,  Edmond,  the  slave  of  L.  J. 
Cross,  it  was  held  not  necessary  to  allege  that  L.  J.  C.  was  the  owner 
or  employer  of  the  said  slave.  It  is  sufiScieut  if  the  charge  is  laid  "  one 
negro  slave  of  L.  J.  C."     The  State  vs.  La  Creiix,  i.,  *488 330 

3.  The  material  words  of  the  statute  under  which  an  indictment  is 
framed,  must  be  used lb. 

4.  It  is  not  necessary  to  allege  in  an  indictment,  by  what  means  or 
how  the  prisoner  aided  the  slave  in  departing  from  the  service  of  his 
master lb, 

5.  Any  trading  with  a  slave,  without  a  permit  from  his  owner  or 
employer,  in  buying  or  selling,  for  cash  or  on  credit,  for  much  or  for 
little,  is  an  indictable  offence  under  the  Act  of  1817.  State  vs.  Claus 
Vonglon,  Jr.,  i.,  *187 123 

G.  A  count  for  felony,  and  a  count  for  a  misdemeanor,  may  legally 
be  joined  in  the  same  indictment.  The  State  vs.  Boise  <£'  Stake,  i., 
*189 124 

7.  Where  two  persons  were  jointly  indicted  for  receiving  stolen 
goods,  and  one  of  them  was  acquitted,  the  acquittal  of  one  does  not 
operate  as  a  discharge  to  the  other.  Boies  ct  Stuke  ads.  'The  State,  ii., 
*252 509 

8.  Wherever  one  of  the  counts  in  an  indictment  for  trading  with  a 


700  INDEX. 

slave  is  good,  the  Court  awards  judgment  upon  it,  notwithstanding 

the  other  counts  maybe  bad.     The  Stale  vs.  Turner,  ii.,  *399 601 

Tide,  also  Forgery,  1,  2,  3,  4,  5,  6,  7,  8,  and  Bastardy,  1. 

INDORSEE. 

1.  The  protest  of  a  note  for  non-payment,  and  legal  notice  to  the 
endorser,  binds  the  endorser  for  the  payment  of  the  debt.     State  Bank 

vs.  /.  C.  Kerr,  I,  *139 91 

2.  "The  surety  is  bound  by  the  terms  of  his  contract,  and  if  the 
"  creditor,  by  ajreement  with  the  principal  debtor,  without  the  coucur- 

^  "  rence  of  the  surety,  varies  these  terms,  by  enlarging  the  time  of 
"performance,  the  surety  is  discharged  ;  for  he  is  injured  and  his  risk 
"  increased." Ih. 

3.  AVhere  a  new  contract  had  been  made  by  the  defendant,  Kerr, 
with  the  bank,  (which  he  never  complied  with,)  by  which  he  was  to 
have  five  years,  by  substituting  new  notes  wth  the  same  endorsers,  in 
lieu  of  the  suit ;  it  was  held  not  to  be  such  a  variance  as  to  discharge 

the  endorsers lb. 

4.  Whese  there  is  a  special  endorsement  on  a  note,  waiving  the 
right  to  the  usual  notice  of  demand  and  refusal ;  unless  the  endorse- 
ment is  written  by  the  endorser,  its  truth  and  correctness  must  be 
clearly  proved  to  have  come  from  his  authority,  or  it  cannot  avail  the 
endorsee      Fowler  vs.  Fleminr/,  i.,  *282 184 

5.  ^Yhere  the  endorser  of  a  promisory  note  has  secured  himself 
against  his  liability,  by  an  assignment  or  lien  upon  the  whole,  or  a 
sufficiency  of  the  maker's  property  as  an  indemnity,  notice  is  not 
required  to  be  given  to  him.     Barrett  ads.  Charleston  Bank,  ii.,  '*191.  471 

INFANCY. 

1.  Where  a  daughter  (an  infant)  resides  with  her  mother,  before 
marriage,  it  will  be  presumed  that  she  was  properly  maintained,  until 
the  contrary  is  proved ;  for  the  mother  is  considered  to  be  the  proper 
judge  of  what  is  necessary  for  her,  and  should  be  consulted  before  a 
credit  is  given  to  her.  Vide  Connolly  ads.  Assir/necs  of  Hull,  3  McC. 
Rep.  6  ;  Jones  c&  Danforth  vs.  Colwin  and  wife,  i.,  *14 9 

INJUNCTION.     See  Docket,  1. 

[It  is  a  contempt  of  the  Court  of  Equity,  for  a  plaintiff  at  law,  whose 
process  has  been  enjoined,  to  proceed  thereon  after  the  error  for 
injunction,  and  before  the  writ  of  injunction,  if  he  has  notice  of  the 
error.     Treasurers  vs.  Clowney,  510.     J./i.] 

INSOLVENT  DEBTORS'  AND  PRISON  BOUNDS'  ACTS. 

1.  Before  requiring  a  defendant,  who  applies  for  his  discharge  under 
the  lusolcent  Debtors'  Ad,  to  join  in  an  issue  to  try  the  fairness  of  his 
schedule,  there  ought  to  be  some  showing  by  affidavits ;  but  if  the 
plaintiir,  without  affidavit,  makes  the  charge  by  suggestion,  and  the 
defendant  pleads,  he  waives  his  right  to  call  for  affidavits ;  he  admits 
by  his  plea  that  there  is  something  to  be  tried  by  a  jury.  Baker, 
Johnson  (l>  Co.  vs.  Jiushnell,  i.,  *GG 43 

2.  An  applicant  for  his  discharge  under  the  Insolvent  Debtors'  Act, 
will  not  be  permitted  to  discontinue  or  withdraw  his  application  after 
a  suggestion  charging  his  schedule  with  fraud  has  been  filed.  Sher- 
man it'  Dehruhl  vs.  Barrdt,  i.,  *147 96 

3.  A  defendant's  schedule  is  amendable,  under  the  discretion  of  the 
Court ;  but  it  must  be  shown  by  affidavit,  or  otherwise,  to  the  satisfac- 
tion of  the  Court,  that  the  omission  to  insert  the  property  omitted  in 
the  schedule,  arose  from  ignorance,  inadvertance,  or  mistake.  He  M'iU 
not  be  permitted  to  amend,  if  it  will  create  surprise  or  delay  to  the 
other  party Ih 


INDEX.  701 

4.  Whenever  the  right  of  a  person  to  be  discharged  is  resisted,  on 
the  groiuul  of  fraud,  it  is  not  necessary  that  there  should  be  any  show- 
ing on  oath,  unless  the  result  of  the  allegation  would  be  to  delay  the 
hearing  of  the  debtor's  application.  In  that  event,  the  Court,  in  the 
exercise  of  a  sound  discretion,  may  require  the  creditor  to  verify  his 
accusation  by  affidavits 96 

5.  The  limitation  of  time  in  the  7th  section  of  the  Prison  IJounds' 
Act,  (P.  L.  457,)  applies  solely  to  undue  preference  ;  and  a  fraudulent 
sale  or  conveyance,  and  a  fraudulent  preference,  are  two  distinct 
things lb. 

6.  A  witness  attending  under  a  subpoena  duces  tecum,  is  not  required 
to  testify,  but  merely  to  bring  into  Court  a  paper  which  the  party 
needs Ih. 

7.  Where  an  applicant  for  the  Insolvent  Debtors'  Act  has  been  dis- 
charged by  order  of  the  Circuit  Court,  and  the  order  for  his  discharge 
has  been  set  aside  by  the  Appeal  Court,  the  rights  that  he  acquired 
by  the  order  ceased  and  determined  when  it  was  reversed  by  the 
Appeal  Court.     Baker,  Jolmxon  &  Co.  vs.  Bushnell,  i.,  *272 178 

8.  Every  prisoner  in  execution  is  entitled  to  the  prison  bounds,  on 
his  giving  to  the  sheriff  security  to  remain  within  them,  and  to  render 
a  scliedule  on  oath  within  forty  daj-s ;  provided,  if  he  intends  to  take 
the  benefit  of  the  Insolvent  Debtors'  Act,  passed  in  1759,  he  or  she 
has  not  been  in  actual  confinement  forty  days. 

9.  Whenever  the  prisoner  intends  to  take  the  benefit  of  either  of 
the  said  Acts,  if  he  has  the  privilege  of  the  bounds,  he  must,  according 
to  his  bond,  render  a  schedule  on  oath. 

10.  Where  the  prisoner  renders  in  a  schedule  on  oath,  of  his  whole 
estate,  he  has  the  right  to  apply  for  a  discharge  under  either  of  the 
said  Acts.  If  he  applies  for  a  discharge  under  the  Act  of  1788,  he 
need  file  no  petition,  but  the  clerk  is  required  within  ten  days  after 
receipt  of  the  schedule,  to  give  notice  that  the  prisoner  will  be  dis- 
charged, and  the  schedule  assigned,  unless  satisfactory  cause  to  the 
contrary  be  shown  before  one  or  more  judges  of  the  Court  from  whence 
the  process  originates,  or  one  of  the  Commissioners  of  special  bail, 

11.  It  is  the  duty  of  the  clerk  to  give  the  notice,  and  it  must  be  done 
within  ten  days  after  the  filing  of  the  schedule  ;  but  the  notice  must 
be  given  on  the  application  of  the  prisoner.  He  must  elect,  and  not 
the  clerk.  The  Insolvent  Debtors'  Act  requires  the  application  to  be 
made  by  petition  ;  the  other  Acts  require  no  petition.  Muldrow, 
Assignee,  vs.  Bacot  et  al.,  ii.,  *359 577 

INSUEANCE  COMPANY. 

i.  A  party  insuring  goods,  &c.,  with  an  insurance  company,  is  not 
obliged  to  demand  payment  of  the  contributors,  before  bringing  suit 
against  the  insurers.  Faulkner  ^'  Rogers  vs.  Augusta  Insurance 
Company,  ii.,  *158 450 

2.  Where  a  party  obtained  from  two  different  Insurance  Companies 
a  policy  of  insurance  for  the  same  stock  of  goods ;  and  by  one  policy, 
(to  wit,)  the  one  obtained  from  the  defendants,  it  was  expressly  stipu- 
lated, "that  incase  the  buildings  or  goods  herein  mentioned,  have 
been  already,  or  shall  be  hereafter  insured  by  any  policy  issued  from 
this  office,  or  by  any  agent  for  this  office,  or  by  any  other  Insurance 
Company,  or  by  any  private  insurers,  such  other  insurance  must  be 
made  known  to  this  office,  and  mentioned  in  or  indorsed  on  this  policy 
otherwise  this  policy  to  bo  void."  lleld,  first,  that  the  ([uestion  of 
whether  the  stock  of  goods  described  in  this  policy  was  the  same  as 
those  described  and  covered  by  the  policy  in  the  Charleston  Insurance 


702  INDEX. 

Company,  was  a  question  properly  for  the  jury,  and  their  fiiuling  will 
not  be  disturbed. 

Secondly,  it  was  held,  that  the  policy  of  insurance  obtained  from 
the  defendants  was  void  by  the  terms  of  the  policy.  It  having-  been 
obtained  by  fraud  and  misrepresentation.  Hcve  vs.  Columbia  Insur- 
ance Company,  ii.,  *220 490 

3.  An  Insurance  and  Trust  Company  have  the  risfht  on  a  trial  upon 
a  policy  of  insurance,  to  insist  and  demand  the  production  of  the  pre- 
liminary proof  as  a  condition  precedent  to  the  plaintiff's  recovery. 
But  they  may,  nevertheless,  have  waived  their  right  to  call  for  such 
evidence  by  some  act  on  their  part,  when  the  policy  was  presented  for 
payment. 

4.  What  is  or  is  not  a  waiver  of  the  preliminary  proof,  must  depend 
on  the  circumstances  and  language  used  at  the  time. 

5.  Where  a  party  took  a  policy  of  insurance  from  an  Insurance  and 
Trust  Company,  upon  liquors,  groceries,  &c.,  and  the  same  day  on 
which  the  policy  was  executed,  permission  was  given  by  them  to 
assign  the  policy  to  a  third  person,  it  was  held,  that  the  party  to 
■whom  the  assignment  was  made  was  entitled  to  recover,  to  the 
amount  of  the  interest  which  he  had  in  the  policy,  notwithstanding  the 
party  to  whom  the  policy  was  granted,  had  deprived  himself  of  his 
right  to  recover  by  acts  of  fraud. 

6.  The  plaintitt'  placing  the  policy  in  the  hands  of  a  third  party  to 
"assure"  him,  by  consent  of  the  underwriters,  gave  to  (Khonke)  the 
third  party  only  an  equitable  interest,  but  such  an  interest  as  a  Court 
of  law  will  recognize  for  the  purpose  of  doing  justice  in  a  legal  pro- 
ceeding.    Neve  vs.  Colom,hia  lastirance  Company,  ii.,  *237 500 

INTEREST.     See  Bills  of  Exchange,  Notes,  &c.,  10. 

JOINT  CONTRACTORS.     See  Statute  of  Limitations,  14. 

JOINT  TRESPASSERS. 

1.  In  an  action  of  trespass  and  assault  and  battery,  where  the  bat- 
tery has  been  committed  by  several,  and  a  recovery  had  against  ono, 
such  recovery  may  be  pleaded  in  bar  to  an  action  for  the  same  battery 
brought  against  another.     Smith  vs.  Singleton,  ii.,  *184 467 

JUDGE.     See  Slander,  6.     Trespass  to  try  Title,  12. 

JUDGMENT. 

1  A  Court  of  law  has  the  power  to  vacate  or  set  aside  its  own 
judgments,  when  obtained  by  or  founded  in  fraud.  Dial  <&  Henderson 
vs.  Farroiv,  i.,  *292 191 

2.  The  proper  course  to  pursue,  where  a  judgment  is  sought  to  be 
vacated,  and  affidavits  are  submitted  by  the  defendant,  is  to  take  out 
a  rule  for  the  plaintiff,  returnable  to  the  next  term  of  the  Court,  to 
show  cause  why  the  judgment  should  not  be  set  aside lb. 

3.  The  judgment  under  which  the  land  is  sold,  at  sheriff's  sale, 
becomes  a  part  of  the  title  of  the  purchaser.  Jones  vs.  Crawford,  i., 
*373 ....!..  243 

JURISDICTION. 

1.  In  bringing  an  action  in  the  sum.  pro.  jurisdiction,  to  recover  the 
penalty  of  $.^)(),  under  the  Act  of  1830,  for  the  unlawful  beating  of  a 
slave,  it  is  not  necessary  that  the  plaintiff  should  aver  in  his  process 
that  the  defendant  was  a  white  man.  Caldwell,  et  al.  vs.  Langford,  \., 
*275 180 

2.  Strictness  of  pleading  is  not  required  in  the  summary  process 
jurisdiction lb. 

JURY.      Larceny,  4. 


INDEX.  703 

JUSTICES. 

1.  Where  two  Justices,  under  the  Habeas  Corpus  Act,  had  admitted 
a  person  to  bail,  who  wns  charged  witli  iiiurdcr  in  the  warrant,  it  was 
held  that  they  were  guilty  of  an  escape,  and  might  very  properly  be 
indicted.     Tiie  Stale  vs.  Arthur  &  Giiujnard,  i.,  *456 303 

KILLING-  A  SLAVE.     See  Railroad  Compamj,  2. 

LANDLORD  AND  TENANT. 

1.  The  wife  of  a  tenant  is  a  competent  witness  between  tlie  land- 
lord and  a  third  person.     Seii/Iiiifj  vs.  3rtin,  i.,  *252 IGi 

2.  Where  the  agent  of  a  landlord  under  his  own  hand  and  seal, 
issued  a  distress  warrant  against  the  goods  of  the  tenant,  and  consti- 
tuted a  third  party  as  bailiff  to  levy  the  warrant,  it  was  held  compe- 
tent for  the  landlord  to  come  in  and  substitute  himself  for  the  agent 
on  the  record,  and  avow  for  rent  in  arrear.  Keckly  ads.  Harris, 
Administrator,  ii.,  *196 474 

LARCENY. 

1.  The  defendant  was  a  common  carrier,  owned  a  Ijoat  on  the  San- 
tee,  and  undertook  to  transport  cotton  from  Orangeburg  district  to 
Charleston,  belonging  to  various  persons.  Before  reaching  Charles- 
ton, and  while  passing  down  the  river,  he  communicated  his  intention 
(to  one  of  the  hands  on  board,)  of  converting  the  cotton  to  his  own 
use.  Afterwards  at  "  Euchuio  Creek,'"  in  Charleston  district,  he  con- 
summated his  previous  intention,  by  burning  a  portion  of  the  cotton 
and  disfiguring  the  marks  upon  the  other  bales  by  patching,  and  had 
the  cotton  shipped  on  board  a  steamer  to  Charleston,  and  sold  and 
appropriated  the  sales  to  his  own  use.  Upon  an  indictment  for 
grand  larceny  in  Orangeburg  district,  the  jury  were  charged  by  the 
Court : 

First,  "That  to  convict  the  prisoner  of  larceny,  there  must  be  a 
taking  and  carrying  away  of  the  goods  laid  in  the  indictment,  with  a 
felonious  intent,  in  the  District  of  Orangelairg."  "  Second,  That  when 
the  prisoner  received  the  goods,  if  he  intended  to  deliver  them  in  good 
faith  to  the  consignee  in  Charleston,  then  his  subsequent  fraudulent 
appropriation  of  them  to  his  own  use  could  not  make  him  guilty  of 
larceny."  Third,  If,  when  the  goods  were  delivered  to  him,  he  received 
them  with  the  intention  of  stealing  them — then  it  was  larceny  from 
the  beginning,  as  laid  in  Orangeburg  District." 

2.  The  prisoner  was  found  guilty  under  this  charge,  of  petit  larceny. 
And  the  Appeal  Court  held,  upon  appeal,  among  other  things — 

1st.  That  the  jury  under  the  circumstances,  were  at  liberty  to  infer 
that  the  defendant,  at  the  time  he  received  the  cotton  in  Orangeburg, 
intended  to  steal  it  and  convert  it  to  his  own  use,  and  the  verdict  of 
guilty  was  very  properly  given. 

2nd.  That  the  cotton  so  stolen  by  the  defendant  belonged  to  three 
different  individuals,  and  he  was  very  properly  indicted  in  three  cases, 
and  a  conviction  in  one  case  was  no  bar  to  a  conviction  in  tlie  two 
others.  The  stealing  of  the  goods  of  different  persons  is  always  a 
distinct  larceny.     The  Slate  vs.  Tiiurston,  ii.,  *382 591 

3.  Where  the  prisoner  found  a  sum  of  money  on  the  highwa}-, 
which  he  soon  after  converted  to  his  own  use,  with  various  circum- 
stances of  fraud  and  concealment :  it  was  held,  "That  if  the  prisoner 
at  the  time  of  finding  the  pocket  book,  and  before  he  removed  the 
money,  knew  it  to  be  the  property  of  the  prosecutor,"  the  conversion 
under  these  circumstances  would  be  larceny.    The  State  vs.  Ferguson, 

ii.,  *502 C66 

LIEN.    See  Garnishee,  2,  3. 


704:  INDEX. 

LEVY. 

1.  A  levy  upon  sufficient  personal  property  is  prima  facie  evidence 
of  satisfaction. 

2.  Where  personal  property  had  been  levied  on  (ten  years  before,) 
of  the  defendants,  and  by  the  direction  of  the  plaintiffs  the  sheriff 
did  not  advertise  and  sell,  the  plaintiffs  will  not  be  permitted  to 
claim  money  arising-  from  other  sales  of  the  defendant's  property 
under  junior  executions.  Their  lien  upon  other  property  of  the 
defendant  is  suspended  until  the  first  levy  is  disposed  of  and  found 
insufficient.  Neither  can  it  be  restored  by  their  own  act  in  releasing 
the  levy,  after  the  levy  and  sale  under  the  junior  execution.  Moore  & 
Neshit  vs.  Kelly,  ii.,  *350 572 

LOCATION.     See  Trespass  to  try  Title,  4,  5,  6. 

MALICIOUS  PROSECUTION. 

1.  Where  a  prosecution  against  a  party  never  legally  existed,  he 
cannot  maintain  an  action  for  malicious  prosecution.  Braveboy  ads. 
Cockfield,  ii.,  *270 521 

MECHANICS'  BOOKS,     ^qq  Evidence,'^. 

MINISTERIAL  OFFICER.     See  Constable,  2. 

NEW  TRIAL.     See  Slander,  5.     Verdict,  2. 

1.  Where  the  injury  to  a  horse,  (which  has  been  found  within  the 
enclosure  of  another.)  appears  rather  tlie  I'esult  of  accident  than 
design,  and  a  decree  for  the  pkiintiff,  for  the  injury,  has  been  given — 

a  new  trial  will  be  granted.     Joius  ads.  /S'e(/J  i.,  *12 8 

2.  Where  a  trespass  for  beating  a  slave  has  been  clearly  proved, 
without  any  legal  justification,  and  the  jury  find  a  verdict  for  the 
defendant,  a  new  trial  will  be  granted.      Griinke  vs.  Houseman,  i.,  *131..     86 

3.  The  confession  of  a  clerk,  in  the  absence  of  his  employer,  that  he 
had  sold  wine  to  a  servant  girl,  is  not  evidence  to  charge  the 
employer;  and  a  new  trial  will  be  granted  to  the  absent  defendant, 
without  prejudice,     The  State  vs.  Boise  tt-  Stiike,  i.,  *191 125 

NONSUIT. 

1.  The  rule  of  Court  which  provides  that  a  plaintiff  who  does  not 
proceed  to  trial  on  the  fourth  call  of  the  cause,  or  obtain  a  continu- 
ance, shall  be  nonsuited,  is  not  only  within  the  power  of  the  Court, 
but  is  expedient  and  proper,  and  ought  to  be  enforced.  Munro  vs. 
Laurens,  I,  *442 291 

2.  In  such  case,  where  a  nonsuit  has  been  ordered,  or  the  cause  has 
been  struck  off  the  docket,  the  Court  will  not  set  aside  the  nonsuit,  or 
restore  the  cause,  at  a  subsequent  term,  on  the  affidavit  of  the  plaintiff, 
that  he  was  misled  by  the  Clerk's  order  for  judgment  by  default,  and 
supposed  that  final  judgment  had  been  obtained,  although  his  attorney 
may  have  died  in  the  meantime lb. 

NOTE.     See  Consideration,  4. 

NUISANCE. 

1.  All  roads  laid  out  hy  public  authority  mnsi  be  regarded  as  public 
roads,  in  the  obstruction  of  which  a  nuisance  may  be  committed.  The 
State  vs.  Mohtey,  i.,  *44 28 

2.  A  road  laid  out  by  order  of  the  County  Court  of  Chester  Dis- 
trict is  a  public  road,  unless  discontinued  by  order  of  the  Commis- 
sioners of  Roads,  or  become  extinct  from  long  neglect  or  non  user. . ,    lb. 

ORDINARY.     See  Court  of  Ordinary. 

OVERSEER.     See  Contract,  3. 


INDEX.  "05 

PAROL   P:VIDENCE.     See  Evidence.     Court  of  Ordinary. 

PAROL  GIFTS. 

It  is  now  the  settled  law  of  the  land,  that  a  voluntary  conveyance 
of  a  personal  chattel,  is  good  against  a  subsequent  purchaser  with 
notice,  where  there  is  no  fraud  in  the  gift. 

2.  The  Act  of  the  Legislature  passed  in  1832,  on  the  subject  of  parol 
gifts,  was  never  intended  to  do  more  than  prescribe  a  rule  to  govern 
future  cases.  Its  application  could  not  extend  to  gifts  created  before 
its  passage.     Moultrie  vs.  Jennings,  ii.,  *508 670 

PARTITION.     See  Court  of  Ordinary. 

PARTNERSHIP. 

1.  One  partner,  after  the  dissolution  of  the  copartnership,  cannot 
bind  the  other,  by  signing  the  partnership  name,  without  express 
authority ;  and  notice  through  the  public  papers,  to  the  plaintiffs,  of 
such  dissolution,  is  sufiBcient.     Galliott  &  Lefevre  ads.  F.  &  M.  Bank, 

i.,  *209 1 36 

2.  Each  renewal  of  a  note  in  bank,  is  a  new  contract lb. 

3.  One  co-partner  cannot  bind  another,  by  an  obligation  under  seal, 
without  express  authority  given,  or  inferable  from  their  course  of  deal- 
ing.    Lucas  vs.  Sanders  &  M'Alilley,  ii.,  *311 203 

4.  Neither  can  a  recovery  be  had  against  ane,  upon  a  paper  pur- 
porting to  have  been  made  jointly,  as  upon  a  joint  and  several  obli- 
gation     lb. 

5.  A  promise  by  one  co-partner,  after  dissolution  of  partnership, 
cannot  create  a  new  liability  against  the  other  partner,  on  a  simple 
contract,  barred  by  the  Statute  of  Limitations  before  the  dissolution. 
Steele  vs.  Jenninys  &  Beaty,  i.,  *297 194 

PATROL.     See  Courts  Martial,  1,  2,  3. 

PARTNERS. 

1.  Where  grain  received  at  a  mill  as  toll,  was  mixed  up,  and 
became  the  subject  of  traffic  between  the  defendants,  each  being  part 
owner  and  interested  in  the  proceeds  of  the  sale  :  It  was  held  that 
they  were  partners  in  that  particular  business.  Benson  vs.  McBee  & 
Alexander,  ii.,  *91 406 

2.  The  general  rule  of  law  is,  that  partners  are  bound  by  the  acts 
of  each  other ;  and  where  one  of  a  law  partnership  obtained  the  pos- 
session of  a  letter,  (containing  an  authority  to  take  care  of  the  interests 
of  the  plaintiff,)  directed  to  the  other  partner,  and  acted  under  the 
instructions  contained  in  the  letter,  it  was  held,  that  the  plaintiff  was 
bound  by  the  act  of  the  partner,  as  much  so  as  if  he  to  whom  the 
letter  was  directed  had  received  it,  and  acted  upon  it.  Beck  vs. 
Martin,  ii.,  *260 .515 

3.  Where  the  sealed  note  of  one  of  a  partnership  firm  is  taken  for  a 
debt  due  by  the  firm,  the  simple  contract  of  the  partnership  is  extin- 
guished by  the  sealed  note.     Jacobs  vs.  McBee  &;  Alexander,  ii.,  *348. .   570 

PAYORS.     See  Bills  of  Exchange,  Notes  and  Bonds,  3. 

PLEA  IN    BAR.     See  Joint  Trespassers,  1. 

PLEAS  AND  PLEADING. 

1.  Upon  the  "  non  estfacturn"  solely,  a  defendant  cannot  go  into  evi- 
dence of  the  failure  of  the  consideration.  He  must  give  notice  to  the 
plaintiff  of  such  matter.  Vide  Bolinqer  vs.  Thurston,  2  Mill's  Const. 
Rep.  447  ;  and  1  Hill,  370.     Ragsdale  vs.  Thorn,  i.,  *335 218 

2,  Wilful  misrepresentation,  or  any  other  matter  will  go  to  show 
Vol.  I.— 46 


706  INDEX. 

that  a  bond,  note,  or  other  instrument,  was  void  in  its  creation,  may 

be  given  in  evidence  under  the  general  issue 218 

3.  Where  a  declaration  contains  an  averment  that  is  foreign  to  the 
issue,  and  which  may  be  rejected  as  surplusage,  it  need  not  be  proved. 
But  every  material  averment  must  be  proved.     Bell  vs.  Lakin,  *3G4..  237 

POSSESSION.     See  Trespass  to  try  Titles,  1, 2,  3, 10, 11,  12.    See  Statute 
of  Limifatinns,  9,  10. 

1.  Although  an  actual  possession  of  twenty  years  will  raise  the  pre- 
sumption of  a  grant,  yet,  where  the  plaintiff  made  a  survey  of  many 
contiguous  tracts,  with  the  intermediate  and  dividing  boundaries  dis- 
tinctly represented  on  the  plat,  doubted  whether  a  possession  of 
twenty  years  on  one  only  of  the  several  tracts,  would  raise  the  pre- 
sumption of  a  grant  to  all  the  lands  included  within  the  survey.  Alston 

vs.  MrDoical,  i.,  *444 293 

2.  In  such  case  a  plaintiff  cannot  rely  on  a  possession  of  twenty 
years  on  one  of  the  tracts,  to  raise  the  presumption  of  a  grant  to  him- 
self of  all  the  lands  contained  in  the  survey,  when  he  produces  original 
grants  to  others  for  several  of  the  tracts,  (being  those  in  dispute,)  of 

a  date  anterior  to  the  commencement  of  his  possession lb. 

3.  The  defendants  being  in  possession  of  these,  and  the  plaintiff 
having  produced  the  original  grants,  he  must  show  that  he  has 
acquired  the  title  of  the  grantees  by  conveyance,  by  adverse  posses- 
sion, or  such  possession,  with  other  proof,  as  would  raise  the  presump- 
tion of  a  conveyance lb. 

4.  An  entry  for  the  purpose  of  survey,  will  not  create  the  bar  of 
the  statute  ;  nor  will  such  entry,  together  with  the  possession  of  the 
grant,  without  other  proof,  raise  the  presumption  of  a  conveyance  from 
the  grantees lb. 

5.  The  defendants  being  in  actual  possession  of  the  tracts  so 
granted,  of  which  the  plaintiff  never  had  possession:  Held,  That  the 
plaintiff  could  not  recover  without  proof  of  title lb. 

POST  NUPTIAL  AGREEMENT. 

1.  Where  there  has  been  a  post-nuptial  agreement,  between  two 
parties,  and  a  deed  of  trust  is  executed,  (to  a  third  party  as  trustee) 
of  certain  slaves,  for  the  use  and  benefit  of  both  husband  and  wife, 
during  life,  upon  the  death  of  either,  to  the  use  of  the  survivor,  and 
after  the  death  of  both,  to  the  use  of  the  children  of  the  marriage, 
with  a  power  to  sell  and  re-invest,  at  the  request  of  husband  and  wife, 
or  the  survivor  of  them;  and  after  the  death  of  the  wife,  the  trustee, 
at  the  request  of  the  husband,  sold  the  slaves  and  conveyed  them  to 
the  defendant — It  was  held,  that  the  purchaser's  title  was  good.  That 
the  trustee  had  not  only  the  legal  estate  in  the  property,  but  he  had 
the  power  to  sell,  and  at  law,  the  title  could  not  be  disputed,  Pyron, 
et  ux.,  vs.  Mood,  ii.,  *281 .528 

PRIMA  FACIE  EVIDENCE.     See  Administrator,  1,  2. 

PRISON  BOUNDS'  BOND. 

1.  A  Prison  Bounds'  Bond  becomes  forfeited,  against  all  the  parties 
to  it,  when  the  principal  forfeits  his  rights  to  the  beneOt  of  the  law 
under  which  it  was  taken  ;  and  the  liability  of  the  securities  is  fixed, 
UB  soon  as  the  plaintiff  acquires  his  right  to  the  bond  by  assignment. 
McCarlnj,  Ex'or.  vs.  JJavi.s;  et  at.,  i.,  *34 22 

2.  The  amount  of  recovery  is  the  amount  of  the  debt  on  which  the 
defendant  was  confined lb. 

PRISONER. 

1.  A  prisoner,  confined  in  jail  under  execution  of  mesne  process,  is 
bound  to  maintain  himself,  so  long  as  he  has  the  means ;  and  where  a 


INDEX.  707 

sberiff  or  jailor  has  in  his  custody  a  prisoner,  confined  citlier  under 
execution  or  final  process,  before  he  can  recover  pay  for  the  mainte- 
nance of  such  prisoner,  from  the  plaintiff  at  whose  suit  the  prisoner  is 
confined,  he  must  show  that  the  prisoner  has  no  means  of  paying  his 
jail  fees,  and  nothing  out  of  which  he  can  be  supported.  Thoinanson 
vs.  Kerr,  ii.,  *340 5C.') 

PRIVATE  FERRIES. 

1.  The  owner  of  a  private  ferry  may  so  use  it,  (although  on  a  road 
not  opened  by  public  authority,  or  repaired  by  public  labor,)  as  to 
subject  himself  to  the  liability  of  a  common  carrier,  if  he  undertakes 
for  hire,  to  convey  across  the  river  all  persons  indifferently,  with  their 
carriages  and  goods.  But  this  is  a  cpiestion  of  fact,  to  be  determined 
by  a  jury,  and  when  once  passed  on  by  a  jury,  will  not  be  disturbed, 
unless  for  misdirection  in  the  Judge  who  heard  the  cause.  Liillcjohn 
vs.  Jones,  ii.,  *365 581 

PROBABLE  CAUSE.     See  Action  oa  the  Case,  2. 

PROHIBITION. 

1.  Where  a  detachment  of  the  militia  of  the  fourth  brigade,  South 
Carolina  Militia,  had  been  detailed,  (by  the  brigadier-general  of  the 
brigade,)  as  a  fire-guard,  in  the  City  of  Charleston,  under  the  Act  of 
1829,  and  before  their  term  of  service  as  such  guard  had  expired,  the 
officers  and  sergeants  belonging  to  this  detachment,  together  with  all 
the  officers,  &c.,  composing  the  said  brigade,  had  been  ordered  by  the 
brigadier,  under  orders  from  the  Governor  of  the  State,  to  encamp 
and  perform  encampment  duty — It  was  held  that  the  fire  guard  and 
encampment  duties  did  not  conflict ;  and  a  prohibition  to  restrain  the 
collection  of  fines  imposed  by  the  court  martial  against  the  relators, 
for  a  neglect  of  the  later  duty,  was  refused.     Ex.  rela.  Oakley  et  al. 

vs.  Edwards  et  al.,  i.,  *215 140 

2.  A  writ  of  prohibition  will  lie,  to  restrain  the  enforcement  of  a 
tax  execution.     Burger,  Tax  Collector,  xs.  Carter,  ex  re^a.,  *410 267 

PROMISSORY  NOTE. 

1.  Where  a  party  writes  his  name  on  the  back  of  a  promissory  note, 
payable  to  a  third  person,  not  yet  due,  without  express  words  to  show 
the  nature  of  his  contract,  he  will  be  held  as  an  original  promissor. 

2.  It  seems  the  undertaking  will  be  regarded  as  original,  and  not 
collateral.     Stoncij  ads.  Beaubien,  ii.,  *313 54S 

PUBLIC  SALES. 

1.  Defendants,  executors  of  Dr.  Green,  late  of  Columbia,  after 
advertising  a  sale  of  the  negroes  belonging  to  the  estate  of  their  testa- 
tor, to  take  place  in  the  town  of  Columbia,  on  a  certain  day  :  on  the  day 
appointed,  by  previous  notice,  proceeded  to  sell  the  negroes,  at  public 
outcry ;  but  before  offering  any  of  them  for  sale,  announced  publicly, 
and  advertised  the  bystanders,  that  they  did  not  warrant  the  sound- 
ness of  the  slaves  ;  but  did  the  genuineness  of  the  title.  Hdd,  That 
this  was  a  sufficient  notice  to  exonerate  and  exempt  the  executors 
from  a  recovery  against  tlicm,  on  an  action  for  an  implied  warranty  of 
soundness — also,  held,  That  the  onns  did  not  lie  on  the  defendants,  to 
prove  whether  the  plaintiff"  heard  or  was  aware  of  the  terms  of  the 
sale,  or  not.     McLean  vs.  Executors  of  Green,  ii.,  *17 361 

QUARE  CLAUSUM  FREGIT.     See  Court  of  Ordinary. 

QUANTUM  MERUIT. 

1.  Plaintiff"  was  employed  by  defendant,  to  make  a  crop  with  him, 
in  1839,  and  was  to  receive  for  his  services  one  fourth  of  the  crop 
made.      About    the    last    of    August,   a    misunderstanding    arose. 


708  INDEX. 

Plaintiff  was  dismissed,  and  in  September  following  commenced  this 
action  :  Held,  That  plaintiff,  by  commencing  his  action  in  September, 
after  he  was  dismissed,  treated  the  contract  as  being  rescinded,  and 
has  waived  his  right  to  recover  entire  damages  for  the  whole  year  ; 
and  has  restricted  his  right  of  recovery  to  a  compensation  for  his 
services  on  a  quantum  meruit.     Watts  vs.  Tutld,  i.,  *26 17 

EAILROAD  COMPANY. 

1.  The  Railroad  Company  are  not  liable  to  one  of  their  agents  for 
an  injury  arising  from  the  negligence  of  another  competent  agent. 
Miirrai)  vs.  a?.  C.  R.  R.  Company,  i. ,  *38.5 251 

2.  AVhere  the  slave  of  the  plaintiff,  endowed  with  ordinary  intelli- 
gence, and  acquainted  with  the  nature  and  manner  of  using  the  rail- 
road, voluntarily  laid  himself  down  on  the  road  and  went  to  sleep, 
amidst  grass  so  high  as  to  obstruct  the  view  at  some  distance,  (over 
twenty  feet  ahead,)  and  in  this  situation,  without  any  fault  of  the  engi- 
neer, the  engine,  going  at  its  ordinary  speed,  passed  over  the  bodj 
and  killed  the  slave  :  It  was  held,  That  the  plaintiff  could  not  recover 
against  the  company  for  the  price  of  the  slave  killed,  under  the  cir- 
cumstances, and  ordered  a  nonsuit.     Felder  vs.  Railroad  Company, 

ii ,  *403 604 

RAVISHMENT   OF  WARD.     See  Slaves  and  Free  Negroes,  1. 
REPLEVIN  BOND.     See  Bond,  2. 
REPLICATION.     See  Demurrer,  2. 
RULE  OF  COURT.     See  Nonsuit,  1,  2. 
SATISFACTION.     See  Levy,  1,  2. 

SCIRE  FACIAS. 

1.  Where  a  verdict  has  been  obtained  against  two  defendants,  upon 
a  joint  and  several  promissory  note,  and  judgment  has  been  entered 
up  against  both,  and  upon  appeal,  a  new  trial  is  ordered,  unless  the 
plaintiff  discontinues  as  to  one  of  the  defendants  :  Held,  That  the 
plaintiff  should  discontinue  before  "  scire  facias"  is  brought.    Kennerly 

vs.  Walker,  I,  *in 78 

2.  To  permit  a  discontinuance  of  one  defendant  to  a  record  to  be 
entered  on  the  trial  of  a  "  scire  facias,"  upon  the  plea  of  nul  tiel  record, 
would  be  irregular lb. 

3.  A  general  demurrer  to  a  special  replication  to  the  plea  of  •'  nul 

tiel  record,"  will  be  sustained,  unless  the  replication  denies  the  plea. .     lb. 

SEAL. 

1.  Any  letters,  such  as  "  L.  S."  or  a  circumflex  scroll,  made  by  a 
party  in  connection  with  the  words  "  sealed,"  or  "  witness  my  hand  and 
seal,"  or  proved  by  eviderice  aliunde  to  have  been  intended  as  a  seal, 
will  constitute  a  valid  seal.     McKain  vs.  Miller,  i.,  *313 204 

2.  The  intention  of  a  party,  where  the  letters  "  L.  S."  are  annexed 

to  his  signature,  is  properly  a  question  of  fact  for  a  jury  to  decide. ...     lb. 

SHERIFF. 

1.  Where  goods  have  been  levied  on  by  a  sheriff",  under  executions 
in  his  hands,  and  before  they  are  sold,  a  writ  of  foreign  attachment 
against  the  same  defendant  is  lodged  in  his  office,  he  may  levy  the 
attachment  also  on  the  goods  ;  and  this  is  not  such  a  case,  where  the 
property  or  fund  is  protected  by  being  in  the  custody  of  the  law.  Day 

vs.  Decker,  i.,  *92 62 

2.  Merely  loilging  a  writ  of  attachment  in  the  sheriff's  office,  is  not 
sufficient  to  attach  the  property  or  fund  in  his  hands  ;  but  the  Court 


INDEX.  709 

will  permit  him  to  accept  service,  even  after  rule  and  cause  shown — 
nunc  pro  tunc (j2 

3,  Where  a  sheriff  has  collected  money  under  execution  in  favor  of 
the  plaintiff,  and  before  a  demand  is  made  on  him  by  plaintiff"  to  pay 
over  the  money,  he  receives  written  notice  from  the  attorney  of  cer- 
tain attaching  creditors  not  to  pay  over,  but  to  retain  the  sum  collected 
in  his  hands — that  they  intend  to  file  a  sug-gestion  to  set  aside  the 
plaintiff 's  judgment  and  execution,  as  fraudulent  and  void.  Held  that 
the  sheriff  was  legally  justified  in  retaining  the  money.  Thomas  vs. 
Yates,  i.,  *179 118 

4,  If  there  are  conflicting  claims  to  money  collected  by  a  sheriff,  and 
he  recives  notice  and  acts  fairly  and  bona  fide  in  the  matter — does  not 
use  the  money  himself,  but  deposits  it  in  bank  to  await  the  ultimate 
decision  of  the  Court — he  does  not  subject  himself  to  the  penalty  of 
the  Act  of  1796 [b. 

5.  The  Act  of  1796  is  somewhat  penal,  and  should  be  construed 
with  strictness  in  favor  of  the  party  to  be  effected  by  it lb. 

6.  A  sheriff  is  bound  to  show,  where  he  is  sued  under  the  Act,  that 
he  has  acted  fairly  and  in  good  faith,  and  that  the  money  has  not 
been  detained  for  false  purposes lb. 

I.  A  sheriff's  execution  book  is,  on  account  of  its  official  character, 
received  in  evidence,  as  proving  in  general  the  official  entries  contained 
in  it.  So,  too,  an  entry  on  an  execution  is  admissible  in  evidence  as 
part  of  the  record.     Secrest  vs.  Twitl)/  i.,  *255 167 

8.  The  entry  of  the  sale  made  by  the  sheriff,  containing  the  name  of 
the  purchaser,  is  as  effectual  a  signing,  as  if  the  sheriff  had  written  the 
name  of  the  purchaser  to  a  formal  contract lb. 

9.  A  sheriff  cannot  be  relieved  from  an  attachment  issued  against 
him,  nor  can  he  have  it  dissolved,  unless  he  can  show  that  he  has  used 
all  the  means  in  his  power,  under  the  execution  against  the  defendant 
to  obviate  and  repair  the  consequences  of  his  former  default ;  and  that 
the  loss  to  be  suffered,  did  not  arise  from  his  negligence,  but  from  the 
absolute  insolvency  of  the    defendant.     Pittman  &  Day  vs    Clarke, 

L,  *316 20G 

10.  The  Act  of  1839,  regulating  the  office  and  duties  of  sheriffs  of 
this  State,  and  dispensing  with  the  return  of  "  miUa  bona"  heretofore 
required  against  sheriffs,  before  commencing  actions  on  their  official 
bonds  against  the  securities,  does  not  do  away  the  necessity  of  the  re- 
turn of  "  nulla  bona"  where  the  sheriff  was  elected  and  gave  bond 
before  the  passage  of  the  Act  of  1839. 

II.  The  Act  of  1839  is  prospective,  and  applies  only  to  those  sheriffs 
who  have  been  elected  and  given  bond  since  its  passage. 

12.  Where  the  sheriff,  making  the  returns  of  executions  in  his  office, 
to  the  clerk  of  the  Court,  previous  to  each  Court,  as  required  by  law, 
omits  to  make  the  proper  return,  he  will  not  be  permitted  to  make  it 
subsequently,  "  nunc  pro  tunc."     The  State  vs.  Wylic,  el  al.,  ii.,  *1.  .  .    351 

13.  After  the  lapse  of  twenty  years,  the  conditions  of  a  sheriff's 
bond  will  be  presumed  to  have  been  performed.  Treasurers  vs.  Execu- 
tors of  McPhcarson,  ii.,  *69 392 

14.  A  sheriff  is  bound  to  take  notice  of  the  liens  in  his  office,  and  to 
paj^  money  collected  by  him  under  official  authority,  to  the  oldest  exe- 
cution. And  when  he  pays  money  to  a  junior  execution,  he  does  so  at 
his  own  risk,  and  he  will  be  held  liable  for  the  consequences,  either  by 
rule  or  action  at  law.  See  Act  1839,  21  sect.  30,  defining  sheriffs' 
duties. 

15.  "When  there  is  a  contest  for  money,  collected  by  a  sheriff  in  his 
official  capacity,  he  is  a  stakeholder  and  must  hold  his  hand  (but  iu 


710  INDEX. 

good  faith  and  without  collusion  with  either  party)  until  the  adverse 
claims  are  subjected  to  adjudication. 

16.  A  rule  will  always  go  where  the  legal  rights  of  the  parties  can 
be  made  to  appear  from  a  conceded  statement  of  facts.  But  where 
the  facts  are  disputed,  and  the  law  depends  on  their  developement,  the 
parties  should  be  left  to  their  action  at  law,  or  an  issue  will  be  directed 

at  law  to  try  them.     Coo-pp.r  vs.  Scott,  ii., *150 446 

17.  On  a  suggestion  filed  against  a  sheriff,  (after  judgment  has  been 
obtained  against  him  on  his  ofBcial  bond,)  suggesting  other  breaches 
of  his  bond,  he  may  plead  double  if  he  chooses,  but  he  cannot  traverse 
and  demur  both,  to  the  same  portion  of  the  suggestion. 

18.  Whatever  a  sheriff  does,  or  omits  to  do,  in  his  ofiBcial  character 
as  a  public  officer  (under  the  Act  of  1 829,)  properly  recognized,  whereby 
damage  results  to  another,  seems  to  be  a  violation  of  the  duties  of  his 
office,  and  the  damage  proved  may  be  recovered  under  the  bond.  Fees 
improperly  charged,  constitute  such  damage  ;  but  a  penalty  or  forfeit- 
ure given  to  the  party  injured,  for  his  more  ample  reparation,  and  for 
the  punishment  of  the  sheriff,  seems  not  to  be  damage  but  rather  a 
chance  of  gain,  which,  by  increase,  the  law  bestows  upon  the  sufferer  ; 
such  penalty  or  forfeiture  may  be  recovered  against  the  sheriff  by  suit, 
"in  which  no  imparlance  shall  be  allowed,"  but  does  uot  constitute 
such  a  demand  as  may  be  recovered  under  the  bond,  against  the  sheriff 
and  his  sureties,  for  his  breach  of  official  duty.  Treasurers  vs.  Bucknor, 
Sheriff,  ii.,  *323 554 

19.  Where  a  sheriff  has  no  process  giving  him  authority  to  receive 
money,  a  person  who  pays  to  his  deputy  cannot  look  to  him.  And 
■where  one,  deceived  by  no  show  of  authority,  pays  money  to  J.  S.  him- 
self, then  being  sheriff,  that  which  the  sheriff  has  not  authority  to  re- 
ceive, J.  S.  personally  is  liable  for,  and  uot  the  official  bond  of  the 
sheriff.  But  should  the  sheriff,  having  writs  which  authorize  him  to 
collect,  exact  from  the  debtor  more  than  was  lawfully  required,  even 
without  levy,  the  payment  is  not  voluntary,  and  it  is  a  violation  of  his 
official  bond.     Ibid.,  ii.,  *327 557 

20.  A  sheriff  cannot  recover,  (in  an  action  of  assumpsit,)  from  a 
purchaser  at  sheriff's  sale,  for  property  purchased,  where  the  purchaser 
is  the  owner  of  the  execution  in  his  office  entitled  to  a  preference  from 
the  proceeds  of  sale,  unless  he  can  show  that  a  part  of  the  money  aris- 
ing from  the  sales  was  applicable  to  the  payment  of  his  costs,  and  then 
only  the  amount  of  his  costs. 

21.  When  one  being  the  owner  of  an  execution,  under  which  the 
sheriff  sells,  purchases  property  at  the  sheriff's  sales,  upon  an  action 
of  assumpsit  against  him  by  the  sheriff  for  the  amount  of  his  bids,  he 
cannot  avail  himself  by  way  of  discount  of  the  amount  of  his  execution 
in  the  sherilfs  office,  although  his  execution  is  entitled  to  the  prefer- 
ence in  the  sales.     Cubb  vs.  Fresdij,  Sheriff,  ii.,  *416 612 

ynOP  KEEPER.     See  Evidence,  5. 

SLANDER. 

1.  On  the  trial  of  an  action  for  slander,  the  defendant  will  not  be 
permitted,  under  the  plea  of  the  general  issue,  to  prove  the  truth  of 
the  words  spoken,  or  any  fact  which  will  go  to  criminate  the  plaintiff. 
The  plea  of  justification,  in  order  to  prove  the  truth  of  the  slander, 
must  always  be  pleaded.     Eaijun  vs.  Gantt,  i.,  *408 313 

2.  Jn  an  action  on  the  case  for  slander  in  charging  the  plaintiff  with 
perjury,  the  rolloquinni  stated  in  the  declaration  set  forth  the  trial  of 
nn  indictment  for  a  riot ;  the  record  produced  on  the  trial  was  for  a 
riot  and  assault ;  held,  to  be  an  immaterial  variance. 

3.  So,  a  slight  variance  in  the  names  of  the  defendants  in  the  indict- 


INDEX.  Ill 

meut,  as  set  out  in  the  duclaratiou  and  contained  iu  the  record,  may 
be  cured  by  parol  proof  of  the  identity  of  the  persons,  llamilluii  vs. 
LauyU-y,  I,  *498 338 

4.  In  an  action  of  slander,  where  the  words  spoken  were,  that  the 
"  plaintiff  had  sworn  falsely  in  giving  evidence,  before  a  certain 
Justice  Johnson,  in  a  trial  heard  before  him,"  it  is  not  necessary  to 
aver  iu  the  declaration,  that  the  Justice  had  jurisdiction  of  the  cause 
in  which  the  plaintiff'  was  sworn  as  a  witness,  or  that  liis  testimony 
was  material.     Both  of  these  are  presumed,  until  the  contrary  appears. 

.5.  If  there  be  a  cf//w/»/(n;/,  [prefatory  averment.  An.^  referring  to 
the  trial  of  a  cause  before  a  Justice,  in  which  the  plaintiff  was 
examined  as  a  witness,  and  iu  it,  it  is  averred,  that  the  defendant, 
speaking  of  such  trial  and  testimony,  spoke  the  same  words,  they 
would  be  actionable.  They  impute  a  false  swearing,  in  a  court  of 
justice,  vi\i\(i\i,  prima  facie,  imports  perjury.  If  these  general  facts  so 
averred  be  proved,  it  is  enough  on  the  part  of  the  plaintiff'. 

C.  It  is  the  right  and  duty  of  a  Judge,  to  instruct  the  jury  fully 
upon  the  law  arising  out  of  the  facts  proved — and  in  an  action  of 
slander,  where  the  defendant  had  charged  the  plaintiff'  with  having 
sworn  falsely  before  a  Justice,  in  a  certain  trial  in  which  the  plaintiff' 
was  examined  as  a  witness,  the  defendant,  on  the  trial  of  the  case,  had 
the  right  to  have  the  jury  instructed,  whether  the  evidence  of  the 
plaintiff'  before  the  Justice,  was  immaterial  to  the  point  in  issue,  or 
not.  And  upon  the  refusal  of  the  presiding  Judge  so  to  instruct  the 
jury,  a  new  trial  was  granted.     Dalnjmple  vs.  Lufton,  ii.,  *112 419 

SLAVES  AND  FREE  PERSONS  OF  COLOR. 

1.  Under  the  Act  of  1740,  any  negro  claiming  to  be  free,  has  the 
right,  by  guardian,  to  bring  an  action  of  trespass  in  the  nature  of 
ravishment  of  ward;  not  only  against  anyone  claiming  property  in, 
but  against  any  one  having  the  possession  of  such  negro.  JFeA/iC;-  ads. 
Guardian  Tom  Brisler,  i.,  *i35 89 

2.  AVhere  one  in  his  lifetime  was  seized  and  possessed  of  certain 
slaves,  to  wit: — "  Henrietta  and  her  four  children,  Charlotte,  Francis, 
Nancy,  John,  and  Elizabeth,  and  also  Tilly  and  Mary"^and  by  deed 
bearing  date  26th  February,  1830,  for  a  nominal  consideration,  assigns 
to  the  defendants,  P.  &  C,  the  said  negroes,  Henrietta,  and  her  four 
children  (as  above  named)  on  the  special  trust,  confidence  and  con- 
dition, that  they  will,  from  time  to  time,  and  at  all  times  hereafter, 
permit  and  suffer  the  negroes  above  named,  or  any  or  all  of  them,  and 
also  the  future  issue  and  increase  of  the  females,  to  seek  out  and  pro- 
cure employment,  and  to  work  for  their  own  maintenance  and  support ; 
and  further  in  trust  to  allow  them  the  said  negroes,  ikc,  to  receive 
and  take  for  their  sole  use  and  benefit,  all  such  moneys  as  they  might 
obtain  for  their  labor  or  otherwise,  after  paying  to  the  trustees  the 
sum  of  one  dollar  per  annum  and  no  more.  'I'he  other  deed  jjurports 
to  convey  to  the  same  trustees  the  slaves  Tilly  and  Mary,  in  trust,  to 
apply  their  labor  to  the  use  of  Henrietta  and  her  children  as  aforesaid, 
until  her  youngest  child  shall  come  to  the  age  of  twenty-one  years, 
and  then  to  sell  the  slaves  Tilley  and  Mary,  and  divide  the  proceeds 
between  Henrietta  and  her  children,  share  and  share  alike.  /■  was 
held— 

3.  That  the  deeds  were  good,  and  sufficient  to  vest  the  title  to  the 
slaves  iu  the  defendants.  That  the  negroes  mentioned,  viz. :  Henrietta 
and  her  children,  are  still  slaves  under  the  dominion  of  tiieir  masters, 
and  must  so  remain. 

4.  That  if  the  defendants  should  give  them,  under  the  deeds,  the 
fruits  of  their  labor,  it  is  not  unlawful. 


712  INDEX. 

5.  That  the  second  deed  is  a  good  common  law  conveyance  to  the 
defendants,  of  the  two  slaves,  Tilly  and  Mary,  for  the  use  of  other 
slaves. 

6.  That  by  the  laws  of  this  State,  slaves  may  acquire  and  hold  in 
possession  personal  property  (not  prohibited  to  them  by  Act  of  the 
Legislature)  with  the  consent  of  their  masters  or  mistress.  And  such 
property  is  in  law  to  be  rt^garded  as  the  property  of  the  owner  of  the 
slave.     Cannille  vs.  Administrators  of  CarmiUe,  ii.,  *454 635 

7.  A  free  person  of  colour,  by  the  laws  of  this  State,  may  take  and 
hold,  convey  by  deed,  dispose  of  by  will,  or  transmit  to  his  heirs  at 
law,  both  real  and  personal  estate. 

8.  A  slave  may  acquire  property,  but  as  he  cannot  hold,  it  inures 
to  the  master. 

9.  Freedom,  when  bestowed  upon  a  slave  by  will,  is  usually  spoken 
of  as  a  legacy,  which  requires  the  assent  of  the  executor,  or  other 
bequests.  But,  should  the  executor  withhold  his  assent  to  the  legacy 
of  freedom  to  the  slave,  the  heir  at  law  cannot  retain  him  in  slavery — 
for  upon  the  death  of  the  testator,  his  right  of  freedom  vests,  subject 
only  to  be  held  by  the  executor  liable  for  the  demands  of  creditors. 

10.  After  the  lapse  of  twenty-eight  years,  the  assent  of  an  executor  to 
a  legacy  of  freedom  will  be  presumed,  and  the  claim  of  creditors  satis- 
fied or  barred  ;  and  the  possession  of  the  slave  (so  bequeathed  her 
freedom,)  of  a  tract  of  land  also  devised  to  her  by  the  testator,  and 
which  she  held  undisturbed  and  in  quietness,  is  sufficient  to  give  her  a 
title  to  said  land,  as  a  free  person  of  colour,  against  the  heir  at  law, 
and  all  the  world. 

11.  By  the  Act  of  1824,  it  is  enacted,  that  every  "gift  of  land  by 
devise  shall  be  considered  as  a  gift  in  fee  simple,  unless  such  construc- 
tion be  inconsistent  with  the  will  of  the  testator,  expressed  or  implied." 
The  word  "  hereafter"  in  the  first  part  of  the  section,  is  held  to  relate 
to  the  time  of  adjudication,  in  connection  with  the  word  "■considered," 
and  not  to  the  date  of  the  devise. 

12.  Where  the  testator  by  his  will  devises  in  consecutive  clauses,  1. 
To  Judith,  then  to  Barbara,  each  one  half  of  certain  lands  containing 

acres,  to  themselves  for  life,  with  the  power  of  disposing,  and 

in  default  with  remainder  over.  And  afterwards  by  a  codicil  to  said 
will  uses  the  following  language.  "  I  do  hereby  revoke  that  part  of 
my  will  wherein  1  bequeathed  to  the  within  named  Judith  and  Barbara, 
the  three  tracts  of  land  between  them,"  and  afterwards  continues,  "  I 
bequeath  to  the  said  Judith,  the  place  whereon  she  now  lives,  adjoin- 
ing John  Newman's  land,  containing  three  hundred  acres,  under  the 
coritinf/enries,  limitations  and  restrictions,  mentioned  in  my  said  will," 
and  "  I  revoke  that  part  of  my  said  will,  wherein  I  leave  to  the  said 
Barbara  that  land  below  Silver  Bluff,  being  a  part  of  three  tracts  of 
land,  and  in  lieu  thereof,  I  leave  her  that  whole  tract  adjoining  the 
point,  containing  upwards  of  three  hundred  acres,  the  lowermost  part 
of  said  land.  The  land  between  the  two  parcels  J  left  to  the  said 
Judith  and  Barbara,  I  leave  to  the  said  Thomas,  sou  of  the  said  Rachel 
Dupre." 

13.  It  was  held,  that  the  devise  to  the  said  Barbara  in  the  codicil 
was  not  merely  a  substitution  of  one  tract  of  land  for  another,  to  be 
held  by  her  for  life  only,  and  suliject  to  the  limitations  of  the  original 
devi.se  to  her  by  the  will  of  the  testator,  but  was  a  devise  in  fee. 
Botoers  vs.  Newman  et  al.,  ii.,  *472 646 

STATUTE  OF  FRAUDS. 

1.  The  parol  promise  of  a  party  to  pay  the  debt  of  a  third  person, 
or  to  sign  a  note  with  him  as  security,  is  a  collateral  undertaking,  and 


INDEX.  713 

void,  under  the  statute  of  frauds.  There  is  no  distinction  between  a 
promise  made  before  and  after  the  delivery  of  the  goods.  The  promise, 
in  order  to  charge  the  party,  must  be  in  writing.  Branson  vs.  iStrouJ, 
ii.,  *372 585 

STATUTE  OF  LIMITATIONS. 

1.  Possession  and  the  payment  of  the  purchase  money  is  a  good 
equitable  title,  and  a  possession  of  ten  years  under  such  a  title  is  good 
under  the  Statute  of  Limitations.     Ellison  vs.  Cathcart,  i.,  *5 3 

2.  After  the  Statute  has  run  out,  there  must  be  "an  express  promise 
to  pay,  or  an  admission  of  a  subsisting  debt  which  the  party  is  willing 
and  liable  to  pay."     Ilorlheck  vs.  Hunt,  i.,  *197 129 

3.  Whether  the  acknowledgment  proved  is  suEBcient  to  take  a  case 
out  of  the  statute,  is  a  question  for  the  Court,  and  not  one  of  evidence 

~  or  construction  for  the  jury Ih. 

4.  The  admissions  by  the  defendant,  within  two  year  from  the  com- 
mencement of  the  action,  that  the  cotton  of  the  plaintiff's  intestate 
was  sliipped  on  board  of  his  steamer,  that  it  had  been  destroyed  by 
fire,  and  that  the  controversy  as  to  his  legal  liability  was  still  pending, 
was  held  not  to  be  a  sufficient  admission  of  his  liability,  on  which  the 
law  would  raise  an  implied  promise.  Administrator  of  Patton  vs. 
Magrath,  i.,  *212 138 

5.  The  cause  of  action  in  this  case  accrued  on  the  3d  December, 
1832,  and  suit  was  brought  by  the  plaintiff's  intestate  in  May,  1833, 
and  abated,  before  it  was  tried,  by  his  death.  In  March,  1835,  suit 
was  renewed  by  the  plaintiffs,  and  at  February  Term,  1839,  of  the 
Appeal  Court,  a  nonsuit  was  ordered.  In  April  following,  this  suit 
was  commenced  :  Held,  that  the  Statute  of  Limitations  was  a  bar  to 
plaintiff's  recovery.     That  this  suit  could  not  be  connected  with  either 

of  the  former  cases lb. 

6.  A  defendant  is  not  precluded  from  availing  himself  of  the  Statute 
of  Limitations,  by  the  remark  of  his  counsel,  in  argument,  "that  his 
client  would  scorn  to  take  advantage  of  the  statute,  if  it  could  be 
made  to  appear  that  the  money  had  been  applied  to  the  business  of  the 
firm."     Steele  vs.  Jennings  &  Bealey,  i.,  *297 194 

7.  Where  there  is  a  plaintiff  wlio  can  sue,  and  a  defendant  who  can 
be  sued,  the  Statute  of  Limitations  begins  to  run.    Bugg  vs.  Summer, 

i.,  *333 217 

8.  The  Statute  of  Limitations  is  not  suspended  during  the  time  that 
elapses  between  the  death  of  an  administrator  and  the  administration 

de  bonis  non lb. 

9.  The  possession  contemplated  by  the  Statute  of  Limitations,  must 
not  only  be  notorious  and  definite  at  one  period,  but  it  must,  in  some 
form,  be  continuous,  during  the  statutory  time  :  that  is,  it  should  be 
definitely  used,  for  some  purpose,  for  ten  years.     Porter  vs.  Kennedy, 

i.,  *354 230 

10.  Although  "possessio  pedis"  does  not  require  actual  occupancy, 

it  implies  enclosure,  and  use  of  the  grounds  enclosed lb. 

11.  The  enclosing  and  sowing  down  a  small  turnip  patch  on  a  tract 
of  land,  and  occupying  it  but  for  one  year,  and  occasionally  cutting 
and  hauling  from  it  fire  wood  and  other  timber,  will  not  be  sufficient 
to  defeat  another,  or  give  a  title  to  land,  under  the  Statute  of  Limita- 
tion      lb. 

12.  The  possession  of  a  small  slip  of  land,  for  ten  years,  (adversely,) 
with  a  fence,  will  give  a  good  title  to  the  land,  under  the  Statute  of 
Limitations.     Smith  vs.  Pickenpack,  ii.,  *72 394 

13.  The  Statute  of  Limitations  will  run  against  the  title  to  lands, 
claimed  by  a  corporate  body,  such  as  the  Camden  Orphan  Society. 
Camden  Orphan  Society  vs  Lockhart,  et  al.,  ii.,  *84 402 


714  INDEX. 

14.  Where  one  of  two  parties,  of  joint  contractors,  was  served  with 
a  writ  in  the  State  of  New  York,  and  judgment  by  the  statute  of  New 
York  was  obtained  against  both ;  afterwards,  suit  was  brought  in 
South  Carolina,  against  the  party  not  served.  Held,  that  the  defend- 
ant in  South  Carolina  was  not  concluded  by  the  recovery  in  New 
York  ;  that  it  was  oxAj  prima  facie  evidence  of  the  extent  of  his  lia- 
bility, but  that  he  might  avail  himself  of  any  defence  which  he  might 
have  had  to  the  original  cause  of  action.  It  was  further  held,  that  the 
judgment,  outside  of  New  York,  was  the  same  as  if  no  judgment  had 
there  ever  been  pronounced  against  the  defendant,  not  within  her  juris- 
diction ;  that  the  party  must  fall  back  on  the  original  cause  of  action  ; 
and  that  the  Statute  of  Limitations,  which  is  the  *' lex  fori,"  would  then 

be  a  bar  to  the  plaintiff's  cause  of  action.     Menlovevs.  Oakes,  ii.,  *162.  453 

15.  Plaintiff,  one  of  the  brothers  of  Francis  Sams,  (deceased,)  paid 
to  the  defendant,  attorney  for  the  executors  of  the  late  Gov.  Hopkins, 
of  Georgia,  $815,  who,  it  appears,  had  a  judgment  against  the  said 
Francis  Sams,  for  $1,031.31,  with  interest  from  18th  February,  1818, 
besides  costs.  At  the  time  of  the  payment  of  the  money  to  defendant 
by  plaintiff,  a  compromise  was  effected  between  them,  and  this  sum  of 
$815,  was  to  be  considered  as  an  entire  discharge  of  the  whole  debt, 
or  defendant  was  to  procure  from  the  executor  an  assignment  of  the 
case  to  plaintiff,  as  plaintiff  might  elect. 

Subsequent  to  the  date  of  the  compromise,  defendant,  as  attorney 
of  the  executors,  assigned  to  plaintiff  the  case  above  alluded  to,  but 
plaintiff,  after  consultation  with  counsel,  refused  to  accept  defendant's 
assignment,  as  he  was  not  the  attorney  in  fact  of  the  owner  of  the  case, 
or  even  attorney  on  record  in  the  case. 

Defendant  refused  to  become  responsible  for  the  amount  paid,  but 
promised  plaintiff,  that  he  would  not  pay  over  the  amount  he  had  re- 
ceived, until  he  procured  an  assignment  to  him  from  the  executors  of 
Hopkins.  Some  short  time  after  this  promise  of  defendant  to  procure 
the  assignment  of  the  case,  or  that  he  would  withhold  the  money,  de- 
fendant paid  over  the  money  to  the  executor,  C.  H.  Hopkins.  Under 
the  circumstances  of  this  case,  it  was  held,  first,  that  this  was  a  per- 
sonal undertaking  on  the  part  of  the  defendant,  and  was  founded  on  a 
sufficient  consideration.  It  was  held,  secondly,  that  the  cause  of  ac- 
tion, which  accrued  to  the  plaintiff,  on  the  non-performance  of  this 
personal  undertaking  of  defendant,  was  barred  by  the  Statute  of  Limita- 
tions. More  than  four  years  having  elapsed,  from  the  payment  of  the 
money  by  Rhett  to  Hopkins,  and  the  bringing  suit.  Sams  vs.  Bhett, 
ii.,*171 459 

16.  Where  a  demand  is  barred  by  the  Statute  of  Limitations,  nothing 
less  than  a  direct  promise  to  pay,  and  an  acknowledgment  of  a  sub- 
sisting debt,  due  and  owing,  and  which  the  party  is  willing  to  pay,  will 
take  the  case  out  of  the  bar  of  the  statute. 

IT.  The  ])romise  must  be. so  explicit,  that  the  extent  of  the  party's 
liability  will  appear  by  the  terms  of  the  assumption.  Williamson  vs. 
Kiiig,  ii.,  *505 668 

SUCJGESTIONS  OF  FRAUD,     See  Commissioners  of  Special  Bail,  2,  5. 

SUBP(ENA  DUCES  TECUM.     See  Insolve7ii  Debtors,  Q. 

SURETY.     See  Bills  of  Exchange,  Notes  and  Bonds,  6. 

SURETY  TO  ADMINISTRATION  BOND.     See  Exec'rs  ^' Adm'rs. 

SURVEYOR. 

1.  A  surveyor  acting  under  a  rule  of  Court  cannot  be  allowed  for 
his  representation  of  separate  tracts,  ou  his  plat,  when  they  are  no 
part  of  the  land  claimed  by  the  parlies,  and  are  merely  put  down  ou 


INDEX.  715 

the  plat  as  boundaries  or  evidences  of  the  identity  of  the  location.  lie 
is  only  entitled  to  pay  for  one  plat.  But  where  the  plaintiffs  claim 
under  two  grants,  and  both  are  represented  on  the  same  paper,  and 
also  a  grant  or  grants  conflicting  with  those  upon  which  the  defend- 
ants rely,  for  each  of  these  the  surveyor  may  be  allowed  to  charge. 

Kersliaio  &  Gilinan  vs.  Sfearns-,  et  al.,  i.,  *73 48 

2.  Where  there  are  several  cases,  all  depending  upon  the  same  lo- 
cation, the  surveyor  is  only  entitled  to  pay  for  one  plat lb. 

TAX  ACT,     See  Constitutional,  1,  2. 

TOWN  COUNCIL.     See  Ciiij  Ordinances,  2. 

TRADING  WITH  SLAVES.     See  Indictment,  1. 

TREASURER.     See  Company,  1. 

TRESPASS. 

1.  It  is  a  well  settled  rule,  that  for  all  acts  done  under  color  of  legal 
proceedings,  where  the  court  has  no  jurisdiction,  or  where  the  proceed- 
ing is  irregular,  trespass  and  not  case  is  the  proper  form  of  action.  See 
Harp.  Rep.  486,  McCool  vs.  McClunei/. 

2.  In  an  action  on  the  case,  where  the  plaintiff's  declaration  com- 
plained that  the  defendant  caused  an  execution  to  be  issued  and  levied 
upon  his  land  and  goods,  and  the  same  to  be  sold  by  the  sheriff,  and 
the  money  arising  from  the  sale  of  the  same  to  be  applied  to  the  satis- 
faction of  the  said  execution ;  and  averred  that  afterwards  the  judg- 
ment upon  which  the  execution  issued  "was  set  aside  and  rendered  of 
no  effect,  &c.,  and  afterwards  a  verdict  was  rendered  in  the  same  case 
for  the  defendant  (now  the  plaintiff,)  whereby  it  was  established  that 
the  said  defendant,  (now  plaintiff,)  was  not  in  arrears,  or  in  any  wise 
indebted  to  the  said  defendant,"  by  means  whereof  the  said  plaintiff 
was  greatly  injured,  &c.  It  was  held  that  the  declaration  did  not  con- 
tain such  a  cause  of  action,  as  that  the  defect  could  be  cured  by  the 
verdict  of  the  jury,  and  a  motion  in  arrest  of  judgment  was  sustained. 
Coojjcr  vs.  Halbert,  ii.,  *4I9 614 

3.  A  party  proving  the  declaration  of  another  party,  concerning  a 
trespass  which  had  been  committed,  has  the  right  to  prove  and  give  in 
evidence  all  the  expressions  that  were  used  in  the  conversation  relative 
to  the  trespass  at  the  time,  as  well  on  account  of  their  being  a  part  of 
the  same  conversation,  as  also,  to  show  to  the  jury  the  spirit  and  feel- 
ings with  which  they  were  spoken 

4.  It  is  the  right,  and  also  the  duty,  of  a  Judge,  to  comment  on  all 
the  evidence  of  a  case  to  the  jury,  and  in  cases  of  complicated  facts, 
to  give  to  the  jury  the  aid  of  his  experience,  discrimination  and  judg- 
ment, upon  the  evidence,  as  well  as  the  law,  so  that  he  finally  leaves 
the  ultimate  decision  of  all  the  facts  to  their  judgment.  This  is  the 
practice  of  all  Common  Law  Courts,  and  such  is  the  well  settled 
practice  in  South  Carolina.     Devlin  \s.  Killcrease,  h.,  *42d 613 

TRESPASS  FOR  BEATING  SLAVES.     See  also,  New  Trial. 

1.  To  correct  a  slave  with  a  whip,  giving  him  but  fifteen  stripes, 
when  he  is  found  without  his  master  s  enclosure,  with  a  ticket  or  per- 
mit, accounting  for  his  absence,  is  held  to  be  a  beating  and  abusing, 
within  the  meaning  of  the  Act  of  18c!9.  Caldwell  et  al.  ads.  Lawjford, 
i.,  *27o 180 

TRESPASS  ON  THE  CASE.     See  Trespass,  1,  2. 

TRESPASS  TO   TRY  TITLE.     See  Possession;  also,  Statute  of  LimiL- 
tions,  9,  10. 

1.  In  trespass  to  try  titles,  where  the  defendant  has  not  acquired 


716  INDEX. 

his  possessions  by  a  tortious  eviction,  or  actual  disseizin,  the  plaintifF 
must  make  out  a  perfect  title  in  himself.     Young  \s.  Watson,  i..  *A-id .   297 

2.  It  is  necessary  to  show  that  the  laud  has  been  granted,  either  by 
the  production  of  the  grant,  or  by  proof  of  such  possession  in  the 
plaintiff,  or  some  one  from  whom  he  derives  title,  as  will  authorize  the 
presumption  of  a  grant _ lb. 

3.  A  possession  of  sixteen  years,  which  terminated  in  1791,  insuffi- 
cient for  that  purpose ;  and  the  plaintiff  producing  no  other  title,  was 
nonsuited lb. 

4.  On  a  question  of  location,  a  new  trial  will  more  readily  be  granted, 
than  in  most  other  cases  depending  upon  facts,  in  consequence  of  their 
near  approach  to  questions  of  law. 

5.  Natural  boundaries,  in  questions  of  location,  are  to  prevail, 
unless  there  may  be  some  doubt  about  them,  and  this  doubt  certainly 
removed  by  artificial  marks.  In  such  a  case,  the  artificial  marks  will 
have  effect,  although  of  inferior  degree. 

6.  Where  a  survey  called  for  Dean's  Swamp  as  a  boundary,  it  was 
held,  that  the  creek  or  main  stream  of  the  swamp  was  intended,  and 
not  the  outer  edge  or  margin  of  low,  marshy  land,  that  frequently 
bounds  the  main  stream. 

7.  The  declaration  of  a  tenant,  after  he  has  aliened  his  right  and 
interest  in  the  land,  is  inadmissible  evidence  to  prove  where  a  line  ran, 

or  a  tree  stood.     Felder  vs.  Bonnett,  ii.,  *44 376 

8.  In  an  action  of  trespass  to  try  titles  to  a  tract  of  land,  in  order 
to  give  in  evidence  an  attested  copy  of  the  deed,  under  which  the  party 
claims  the  land  in  dispute,  it  is  only  necessary  to  prove  the  existence 
of  the  original,  and  its  loss.  That  it  cannot  be  found  after  a  diligent 
and  proper  search,  with  those  who  should  have  the  possession  of  it. 
Culpepjier  vs.  WJieeler,  et  al.,  ii.,  *66 390 

9.  Where  a  plaintiff,  in  an  action  of  trespass  to  try  title,  has  discon- 
tinued his  suit,  he  has  no  right  to  call  upon  a  Judge  to  certify  his  plat, 
when  he  is  not  properly  before  the  Court.  The  certificate  of  the 
Judge,  if  granted,  would  be  extra  judicial.  Heyicood  vs.  Searson,  ii., 
*231 496 

10.  There  is  a  material  difference  between  proving  a  deed  as  a  part 
of  a  chain  of  title,  and  introducing  a  paper  as  color  of  title  to  show 
the  extent  of  a  party's  possession.  In  the  first  case  it  must  not  only 
be  proved  to  have  been  in  existence  before  the  party  acquires  rights 
under  it,  but  when  it  purports  to  be  less  than  thirty  years  old,  its  execu- 
tion must  be  strictly  proved. 

11.  To  admit  a  deed  in  evidence  as  an  ancient  deed,  continuous  pos- 
session under  it  for  thirty  years  is  not  always  necessary.  A  less  period 
than  this  will  suffice,  if  there  has  been  no  inconsistent  possession  to 
conflict  with  it.  A  deed  being  found  in  an  office,  recorded,  may  be 
sufficient  evidence  sometimes ;  and  at  all  times  such  testimony  may  be 
received  to  show  the  antiquitj^  of  such  a  paper. 

12.  When  a  party  indicates  the  boundaries  of  his  land  by  stakes, 
for  more  than  ten  years,  by  which  he  shows  the  extent  of  his  posses- 
sion, and  the  boundary  thus  indicated  is  made  known  to  the  adverse 
party,  who  is  interested  to  deny  it,  and  they  acquiesce  therein,  it  is  a 
good  title  to  the  land  by  possession,  with  a  color  of  title.  Allen  vs. 
Johnson,  ii.,  *495 .561 

TROVER.     See  Bailee,  2,  3. 

1.  The  Act  of  1H27  makes  the  action  of  trover,  commenced  under 
its  provisions,  a  proceeding  in  rem. ;  and  when  a  writ  is  issued  and 
served,  the  chattel  is  in  the  custody  of  the  law  and  cannot  be  distrained 
for  rent.     Hcigling  vs.  Main,  i.,  *2.52 1G4 


INDEX.  717 

2.  Plaintiffs  brought  an  action  of  trover  against  defendant,  for  seven 
bales  of  cotton,  part  of  a  cargo  shipped  by  them  to  their  factors  in 
Charleston,  on  board  Michael  Ilarkins'  Bay  Boat,  the  Belle.  During 
the  voyage  the  cotton  thus  shipped  was  damaged  to  the  amount  of 
$358  61  ;  defendant  detained  the  seven  bales  of  cotton,  under  his  lien 
as  a  carrier,  for  freight.  The  damage  done  to  the  cotton,  exceeded 
the  claim  of  freight.  Held,  among  other  things,  1st.  That  the  factors, 
the  consignees  of  the  cotton,  had  no  such  interest  as  divested  the 
plaintiffs  of  their  right  of  action. 

3.  That  where  the  injury  done  by  the  carrier  to  the  cargo,  exceeded 
the  freight,  to  that  extent  the  carrier's  right  to  freight  would  be 
defeated. 

4.  That  where  the  thing  converted,  is  reduced  to  money,  in  the  hands 
of  the  defendant,  the  smallest  measure  of  damages  in  trover,  is  always 
the  amount  received  from  the  conversion,  with  interest  from  the  time 

of  conversion.     Ewart  vs.  Kerr,  ii.,  *14L 440 

5.  Defendants,  (chemists)  were  in  the  practice  of  filling  a  certain 
soda  fountain  for  one  Hopkinson,  who  rented  this  and  another  foun- 
tain from  the  plaintiff.  Hopkinson  absconded,  leaving  the  soda  foun- 
tain in  the  possession  of  defendants,  who  had  first  filled  it.  Plaintiff 
brought  this  action  of  trover  for  the  conversion  by  defendants.  Held, 
that  there  was  no  such  tortious  conversion,  as  would  enable  plaintiff  to 
sustain  trover,  and  a  nonsuit  was  ordered.  Parkerson  vs.  Simmons  & 
Epping,  ii.,  *188 469 

TROVER  ACT,  1827.     See  Bond,  1,  3. 

USURY.     See  Bills  of  Exchange,  Notes,  &c.,  7,  8. 

VAGRANTS. 

1.  The  Act  of  1836,  in  regard  to  vagrants,  is  held  to  be  constitu- 
tional.    The  State  ex  rel.  CoUman  vs.  Maxey  et  al,  i.,  *501 341 

2.  The  powers  conferred  on  a  Court  of  Justices  by  the  Act  of  1836, 
in  regard  to  vagrants,  is  no  violation  of  those  parts  of  the  Constitution 
which  provide  "  that  no  man  shall  be  deprived  of  his  life,  liberty,  or 
property,  but,  by  the  judgment  of  his  peers,  or  by  the  law  of  the  land  ;" 
and  that  "  the  trial  by  jury,  as  heretofore  used  in  this  State,  shall  be 
forever  inviolably  preserved." lb. 

3.  A  proceeding  for  vagrancy  under  the  Act  of  1836,  is  not  barred 

by  a  prosecution  in  the  Court  of  Sessions  for  gaming lb. 

VARIANCE. 

1.  Writs  of  foreign  attachment  were  issued  against  the  defendant 
and  Jane  Reid,  jointly — declarations  against  the  defendant  alone,  sug- 
gesting Jane  Reid  to  be  the  wife  of  defendant:  Held,  to  be  fatal  on 
special  demurrer. 

2.  It  seems  that  the  proper  course  of  discontinuance,  where  two 
defendants  have  been  joined  in  the  same  writ,  is  by  leave  of  the  Court 
to  discontinue.  Leave  to  discontinue  will  never  be  refused,  but  it 
must  first  be  obtained.  This  is  the  usual  practice,  and  this  practice 
has  good  reason — so  says  the  Court.  Lamar  ds  Daniel  vs.  lieed,  ii., 
*346 569 

VENDORS. 

1.  Defendant  having  about  $4000,  desired  to  invest  it  in  Cotton  for 
speculation.  He  accordingly  applied  to  the  plaintiffs,  who  were  cotton 
brokers  in  the  City  of  Charleston,  and  they  purchased  for  him  three 
hundred  and  sixteen  bales  ;  procured  an  advance  on  their  own  respon- 
sibility of  $12,470,  to  pay  for  the  cotton  so  purchased;  shipped  it  on 
board  the  Josepha,  (a  vessel  designated  by  defendant,)  and  consigned 
it,  according  to  the  usages  of  trade,  to  a  house  in  Liverpool.     Subse- 


718  INDEX. 

quent  to  tlie  sailing  of  tlie  vessel,  the  defendant  refused  to  complete 
the  contract.  Upon  this  refusal  this  action  was  commenced.  Verdict 
for  plaintiffs,  $4000.  Held  that  the  defendant  was  liable  to  the  plain- 
tiffs as  vendors;  that  there  was  a  sale  and  delivery,  and  a  new  trial 

was  refused.     Robertson  rf'  GiifiUan  vs.  Shannon,  i.,  *164 108 

2.  "Where  the  vendor  sends  goods,  with  his  price  marked  upon  them, 
and  they  are  accepted  by  the  vendee,  the  law  will  imply  that  they 
■were  taken  on  the  vendor's  terms ;  unless  it  should  appear  otherwise, 
from  the  course  of  previous  dealing  between  the  same  parties,  or  from 
some  custom  with  which  both  were  acquainted.  Mitchell  &  Co.  vs. 
McBee  &  Irvin,  i.,  267 1T5 

VERDICT. 

1.  A  verdict  for  a  specified  sum  of  money,  "  with  interest  thereon 
from  the  16th  February,  1836,"  is  not  void  for  uncertainty,  either  as 
to  the  principal  sum  or  the  interest  ;  but  the  plaintiff  is  entitled  to 
sign  judgment  for  both,  computing  the  interest  according  to  the 
verdict ;  even  if  the  demand  be  unliquidated.     Bank  of  the  Slate  S.  C. 

vs.  Bowie,  i.,  *429 C81 

2.  Where  the  verdict  of  a  jury  is  contrary  to  the  weight  of  evidence 
in  a  cause,  and  against  the  established  rules  of  location,  a  new  trial 
will  be  granted.      Wolfe  vs.  Knotts,  ii.,  *75 39G 

3.  After  verdict,  the  Court  will  by  intendment  suppose  everything 
to  have  been  proved  which  the  allegations  of  the  record  require  to  be 
proved  ;  but  where  everything  which  constitutes  the  gist  of  the  action 
on  the  case  is  omitted,  the  judgment  will  be  arrested.  Cooper  vs. 
Halbert,  ii.,  *419 614 

VINEYARD.     See  Agreement,  3. 

VOID  PROMISE.     See  Consideration,  3;  Statute  of  Frauds,  1. 

WAIVER.     See  Insurance  Company. 

WARRANTY. 

1.  The  plaintiff,  in  an  action  on  the  covenant  of  warranty  of  sound- 
ness, where  there  has  been  a  recision  of  the  contract,  or  where  the 
property  is  dead  or  valueless,  is  entitled  to  recover  back  his  purchase 
money  and  interest.  And  when  he  has  offered  to  restore  the  property 
to  the  defendant,  and  he  has  refused  to  accept  it,  and  the  plaintiff  is 
compelled  to  keep  the  property  and  incur  expense  on  account  of  it,  he 
may  also  recover  such  expenses.     Seibles  vs.  Blackwell,  i.,  5G 36 

WAY— RIGHT  OF. 

1.  The  erection  of  a  gate  across  a  way,  claimed  by  the  plaintiff, 
which  is  opened  and  shut  at  pleasure  by  all  who  pass,  is  not  such  an 
obstruction  as  would  have  the  effect  to  extinguish  the  plaintiff's  right, 
or  of  barring  him  of  his  remedy,  however  long  it  may  have  been  erected. 
Barnwell  vs.  Magrath,  i.,  *174 114 

2.  A  right  of  way,  by  prescription,  implies  an  adverse  use  of  the  way 
for  twenty  years  ;  and  the  party  using  the  way,  must  use  it  as  though 
he  was  exercising  a  right  of  property  in  himself,  uncontrolable  by  the 
owner  of  the  soil  over  which  it  runs,     lloyg  vs.  Gill,  i.,  *329 214 

WITNESS.     Sec  Evidence. 

1.  Tlu!  opinion  of  witnesses  as  to  the  existence  of  disease  in  a  negro, 
who  had  not  tlie  aid  of  science  to  guide  them,  are  inadmissible,  unless 
sustained  by  facts  showing  the  opinion  to  be  true.  Seibles  vs.  Black- 
well,  i.,  *5G 36 

2.  'I'he  subscribing  witness  to  a  contract,  whether  under  seal  or  not, 
mast  be  produced  to  prove  the  instrument,  if  alive,  and  within  the 


INDEX.  719 

jurisdiction  of  the  Court.     It  is  incompetent  to  prove  it  in  any  other 
way.     Trammell  vs.  Roberts,  ct  al. ,  L,  *30.5 199 

3.  A  question  of  credit  between  two  witnesses,  is  to  be  left  to  the 
jury,  and  their  finding  will  not  be  disturbed,  notwithstanding  it  may  be 
contrary  to  the  views  of  the  presiding  Judge,  expressed  in  his  charge. 
The  State  vs.  Gunter,  i.,  *45B 305 

4.  To  discredit  a  witness,  it  is  incompetent  to  offer  testimony  to 
prove  that  the  witness  has  been  guilty  of  stealing.    Free  ads.  The  State, 

i.,  *494 334 

5.  Where  incompetent  testimony  has  been  received,  and  no  objec- 
tion is  made  at  the  time  of  its  reception,  counsel  have  the  right  to 
comment  upon  it  before  the  jury lb. 

WHIT. 

1.  Where  a  writ  was  tested  on  the  4th  day  of  March,  1842,  and 
made  returnable  to  the  3d  Monday  in  March  next,  it  was  held  that  the 
3d  Monday  in  March  might  well  indicate  the  3d  Monday  after  the  test 
of  the  4th  of  March,  1842,  or  the  3d  Monday  next  after  the  4th  Mon- 
day of  March.     Fosey  vs.  Branch,  iL,  *338 564 

WRIT  OF  CAPIAS  AD  SATISFACIENDUM. 

1.  Defendant  was  arrested  and  in  the  custody  of  the  sheriff  by  virtue 
of  a  ca.  sa.  at  the  suit  of  the  Plaintiff,  and  had  rendered  in  his 
schedule  according  to  law,  but  refused  to  assign  it.  Held,  that  by  his 
refusal  to  assign  his  schedule,  he  has  not  forfeited  his  right  to  remain 
within  the  prison  bounds.     Davis  vs.  Eiiff,  i.,  *1 1 

2.  A  defendant  arrested  under  a  ca.  sa.,  who  gives  the  usual  bond, 
for  the  bounds,  and  without  rendering  in  a  schedule,  or  satisfying  the 
debt,  breaks  the  bounds,  may,  by  Act  of  Assembly  of  1839,  be  re- 
taken ;  or,  the  plaintiff  may  proceed  against  the  security  on  the  bond  : 
and  if  the  security  is  insufficient  he  may  have  his  action  against  the 
Sheriff,  who  shall  be  ultimately  liable.     Murray  vs.  Feay,  i.,  *10 7 

3.  It  is  not  necessary  to  have  the  order  of  a  Court,  in  addition  to 
the  ordinary  process  of  law,  which  the  plaintiff  has  a  right  to  have 
issued  for  the  purpose  of  caption  ;  but,  if  the  sheriff  should  refuse  to 
obey  the  usual  process,  the  Court  will,  upon  a  rule,  enforce  it lb. 


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